# Doe v. Calumet City

> Appellate Court of Illinois · November 23, 1992 · 240 Ill. App. 3d 911

URL: https://www.frixlaw.com/law-library/cases/9744707

## Case

- **Full name:** JANE DOE, for Herself and as Next Friend of Betty Doe, Her Minor Daughter and John Doe, Her Minor Son, Plaintiffs-Appellants, v. CALUMET CITY Et Al., Defendants-Appellees
- **Court:** Appellate Court of Illinois
- **Decided:** November 23, 1992
- **Citations:** 240 Ill. App. 3d 911; 182 Ill. Dec. 155; 609 N.E.2d 689
- **Precedential status:** Published
- **Opinion:** Dissent by Manning
- **Judges:** Campbell, Manning
- **Cited by:** 5 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9744707

## Opinion text

JUSTICE MANNING, dissenting:
I must dissent from the majority decision in this case. It is well established that a trial court should dismiss a cause of action on the pleadings only if it is clearly apparent that no set of facts can be proved which will entitle a plaintiff to recover. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501 , 565 N.E.2d 654 .) When a challenge is raised as to all or part of a complaint pursuant to a section 2 — 615 motion to strike or dismiss, all well-pleaded facts in the attacked portion of the complaint are to be taken as true. (Miner v. Gillette Co. (1981), 87 Ill. 2d 7 , 428 N.E.2d 478 .) The role of the reviewing court is to determine whether the allegations of the complaint, when interpreted in the light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. (Zandrozny v. City Colleges (1991), 220 Ill. App. 3d 290 , 581 N.E.2d 44 .) Thus our review here is limited to the allegations set forth in the complaint. Plaintiffs pleaded in their complaint that:
Defendant Horka arrived at the scene and assumed a supervisory role;
Defendant Giglio arrived on the scene a short time before Horka;
From the time Horka arrived and thereafter, he was the officer in charge, assumed supervisory responsibility, and gave instructions and orders to other officers and maintained control of the scene, the building and all persons in the area; specifically, he maintained control of Jane so that she was restrained and unable to aid her children;
Plaintiff Jane Doe told Horka that the intruder said, “I’m going to kill your children,” and that she pleaded with Horka to break the door in;
Horka responded that he would not break down the door because he would be held responsible for the property damages; and that he further indicated there was nothing he could do and would not break down the door;
When plaintiff attempted to break down the door herself one or more of the defendants physically restrained and prevented her from going into the apartment;
At no time did Horka break down the door to the apartment nor did he or any other officer attempt or direct any other officer to enter the apartment in any other manner;
Defendants Horka, Beasley, Surufka and Giglio at all times material to the incident knew, were on notice, and were all uniquely aware of the facts and circumstances surrounding the intruder, his sexual assault of plaintiff, the danger and threat to Betty and John, and his presence in the apartment with Betty and John;
Defendant police officers were in the direct and immediate control of Betty and John Doe at 278 Yates Street, Calumet City, on the morning of December 20,1987, from 4:30 a.m. until 5:30 a.m.; and
Each officer had a duty to enter plaintiffs’ apartment, by force if necessary, to prevent injury to plaintiff Jane Doe’s minor children; and that none of the defendant officers took any action to enter the premises in which Betty and John Doe were exposed to danger.
While it has been held in Illinois that a municipality or its employees may not be held liable for failure to supply general police or fire protection (Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 363 , 243 N.E.2d 214 ), an exception to that general immunity exists where the public employee exercises care or custody over an individual. (Anthony v. City of Chicago (1988), 168 Ill. App. 3d 733, 736 , 523 N.E.2d 22 .) In those instances, the individual’s status is elevated beyond that of a member of the general public, the “special duty” exception is activated and the employee is liable for injury proximately caused by his negligence. Fessler v. R.E.J. Inc. (1987), 161 Ill. App. 3d 290, 296 , 514 N.E.2d 515 .
In Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501 , 565 N.E.2d 654 , plaintiff filed a three-count complaint against defendant seeking to recover damages for injuries he sustained while participating in an adult swimming class held at the Village of Glendale Heights sports complex. The trial court granted defendant’s motion to dismiss counts II and III of the complaint. The appellate court reversed the trial court, and the Illinois Supreme Court reversed the appellate court.
Count II of the complaint alleged liability in tort because defendant had established a “special relationship of control and supervision over the plaintiff.” Count III of the complaint alleged liability in tort because defendant operated the sports complex and swimming pool as a proprietary function. In arguing that the test for establishing a special relationship existed, plaintiff first asserted that defendant was uniquely aware of the particular danger or risk to which plaintiff was exposed. Plaintiff argued that his complaint clearly alleged that he was a “beginner swimmer” and that defendant supplied a “qualified” swimming instructor who knew or should have known that directing a beginner to jump into the shallow end of a concrete swimming pool could result in injuries.
As to specific acts or omissions by defendant which caused the injuries, plaintiff maintained that his complaint averred he was told to jump into the pool by the swimming instructor. Plaintiff likened the affirmative command given by the swimming instructor to that given by the fireman in Anthony v. City of Chicago (1988), 168 Ill. App. 3d 733 , 523 N.E.2d 22 , where the court found that by instructing a bystander to accompany him into a burning building the fireman’s affirmative act created a position of peril to the bystander.
As to the third part of the test, which requires that the specific acts in question be affirmative or willful in nature, plaintiff again relied on the fact that the swimming instructor commanded him to jump into the pool.
Plaintiff maintained that the fourth part of the test, which requires that the injury to plaintiff occur while plaintiff is under the direct and immediate control of defendant, should be disregarded. Specifically, he asserted that the court should adopt the language of Brooks v. Lundeen (1977), 49 Ill. App. 3d 1 , 364 N.E.2d 423 , which would find a special relationship based on traditional concepts of duty and foreseeability in negligence law. The appellate court refused to accept plaintiff’s argument and stated that the determination of whether a special relationship existed must be analyzed in accordance with the four-part test in Bell v. Village of Midlothian (1980), 90 Ill. App. 3d 967 , 414 N.E.2d 104 .
In reversing the appellate court, the supreme court stated that plaintiff had probably pleaded enough facts to satisfy parts 2 and 3 of the special relationship test, but that the complaint failed to contain sufficient averments of facts under parts 1 and 4 of the test to state a cause of action. The court reasoned that the complaint was devoid of any factual allegations that defendant was aware of any particular danger or risk to which plaintiff was exposed (Burdinie, 139 Ill. 2d at 521 ), and that plaintiff also failed to allege any facts to support a claim that he was injured while under the direct and immediate control of defendant. (Burdinie, 139 Ill. 2d at 525 .) However, the court stated that a person is under the direct and immediate control of a municipality if a municipal employee who is acting with official authority which private citizens would reasonably believe they cannot refuse (such as a police officer’s authority) makes a request of the private citizen and the citizen complies with the request. (Burdinie, 139 Ill. 2d at 526 .) The court found that because plaintiff was not forced to jump into the pool, nor ordered or instructed to jump by a person whom he could have reasonably believed he must obey, plaintiff failed to satisfy the fourth prong of the special relationship test.
Similarly, in Huey v. Town of Cicero (1968), 41 Ill. 2d 361 , 243 N.E.2d 214 , the Illinois Supreme Court affirmed the dismissal of a complaint against the defendant, finding that plaintiff’s complaint did not set forth a basis for deviation from the general statutory immunity granted public entities by the Local Governmental and Governmental Employees Tort Immunity Act. In that case, plaintiff’s decedent was fatally beaten by four white youths while en route to an employment office in Cicero, Illinois. Plaintiff’s complaint averred that the town failed to warn him of the dangers a black person faced being on the streets of Cicero at a particular time. The appellate court held that since the complaint did not allege that defendants knew of plaintiff’s decedent’s presence in town, or had reason to know that he required protection from a specific danger, no relationship could be found sufficient to impose a duty upon the city to warn plaintiff’s decedent of danger. (Huey, 41 Ill. 2d at 364 .) The court further held that the complaint lacked allegations of specific acts or omissions by defendant or any causal connection between such conduct and the fatal injury to plaintiff’s decedent. Huey, 41 Ill. 2d at 364 .
The instant case is distinguishable from Bwrdinie and Huey. Here, I find the facts as alleged in plaintiffs’ complaint expressly satisfy “unique awareness” and “control and supervision” over plaintiff sufficient to satisfy the Bell test. First, the complaint averred that plaintiff told Horka that the intruder was inside the apartment with her children and that the intruder had threatened to kill them. Plaintiff further advised Horka that the intruder had sexually assaulted her while she was inside the apartment. The complaint also stated that defendant knew, was on notice, and that all the agents of defendant were uniquely aware of the facts and circumstances and the danger and threat to Betty and John Doe. Thus, these pleadings suggest that defendant was uniquely aware of the particular risk that plaintiffs faced of being sexually assaulted, physically harmed or murdered.
Plaintiffs’ complaint further averred that Horka refused to break down the apartment door, refused to allow plaintiff and others to break the door down and told plaintiff that there was nothing he could do. Horka also refused to direct other officers to break down the door. The intruder remained inside the apartment and eventually injured plaintiffs. I find these pleadings sufficient to meet the second prong of the test, which requires that plaintiff allege specific acts or omissions by defendant which caused the injuries.
As to the third prong of the test, which requires that the specific acts in question be affirmative or willful, clearly the pleadings established that Horka willfully refused to break down the apartment door and restrained plaintiff and others from entering the apartment. The pleadings state that Horka advised plaintiff that he would not break down the door because he would be held responsible for the property damage, and that there was nothing he could do.
I would find that the fourth prong of the test, which requires that the injury occur while plaintiff is under the direct and immediate control of defendant, is satisfied here. The pleadings state that defendant police officers were in the direct control of the residence at 278 Yates Street when the injury occurred. They further state that Horka was the supervising officer, gave orders and maintained control of the scene, the building and all persons in the area. More significantly, Horka physically restrained plaintiff, other officers and paramedics from entering the apartment or breaking down the door.
I believe that the language in Burdinie is controlling here. Plaintiff and her neighbors were ordered not to enter the apartment by Horka. Certainly, they could reasonably believe that Horka had the authority to restrain them from entering the apartment and that they could not refuse that request. Horka arrived at the scene, assumed a supervisory role, and the other officers complied with his orders.
Although the Burdinie court held that no special relationship existed, the facts here are distinguishable from those in Burdinie. The defendant in Burdinie was a swimming instructor, not a police officer. The facts in Burdinie do not indicate that the instructor had knowledge of a known danger that existed in the swimming pool, while the pleadings in this case specifically state that defendant knew of the danger plaintiffs faced. Further, unlike the plaintiff in Huey, plaintiff in this case specifically alleged in the complaint that defendant knew of the danger plaintiffs faced.
I would recognize, as the majority apparently cannot, that the officers’ knowledge of plaintiffs’ predicament and their expression of intent to help, coupled with their affirmative acts, amounted to direct control over plaintiffs. Restraining plaintiff Jane Doe and others from acting on their own behalf is an affirmative act which I believe constituted direct physical control. Indeed, the majority decision here relieves the City of Calumet City and its police officers of any obligation to do more than show up at the scene of a crime. Once at the scene, they are free to stand by and observe without incurring liability for their action, likened to spectators at a wrestling match. This is true even if the officers have special knowledge that harm will be done to a victim who cries out for help.
I find there are sufficient allegations in the complaint to establish that the municipality “instructed,” “directed” or otherwise exercised direct and immediate control over plaintiffs. I would allow plaintiffs to show that respondent’s failure to help during this crisis arose, not out of the sound exercise of professional judgment, but from arbitrariness and capriciousness that cannot be condoned by this State. My disagreement with the majority arises from its failure to recognize, as the statute requires, that a motion to dismiss be viewed in the light most favorable to plaintiff. When plaintiffs’ complaint is viewed in that light, it is clear that plaintiffs have pleaded facts and circumstances establishing that the City of Calumet City’s actions in this case created a special relationship.
Therefore, I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9744707. Public record. Not legal advice.