{ "id": 777561, "name": "CYNTHIA LEONE, Appellee, v. THE CITY OF CHICAGO, Appellant", "name_abbreviation": "Leone v. City of Chicago", "decision_date": "1993-07-22", "docket_number": "No. 74422", "first_page": "33", "last_page": "53", "citations": [ { "type": "official", "cite": "156 Ill. 2d 33" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "235 Ill. App. 3d 595", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5783517 ], "weight": 2, "pin_cites": [ { "page": "601" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/235/0595-01" ] }, { "cite": "41 Ill. 2d 361", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853150 ], "weight": 2, "pin_cites": [ { "page": "363" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0361-01" ] }, { "cite": "139 Ill. 2d 501", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5573900 ], "weight": 5, "pin_cites": [ { "page": "509" }, { "page": "507-08" }, { "page": "509" }, { "page": "525" }, { "page": "525-26" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/139/0501-01" ] }, { "cite": "60 Ill. 2d 141", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5415467 ], "pin_cites": [ { "page": "148" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0141-01" ] }, { "cite": "168 Ill. App. 3d 733", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3514346 ], "pin_cites": [ { "page": "736" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/168/0733-01" ] }, { "cite": "137 Ill. App. 3d 611", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3641263 ], "year": 1989, "pin_cites": [ { "page": "617" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/137/0611-01" ] }, { "cite": "191 Ill. App. 3d 982", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2512392 ], "pin_cites": [ { "page": "992" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/191/0982-01" ] }, { "cite": "139 Ill. 2d 501", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5573900 ], "weight": 4, "pin_cites": [ { "page": "507-08", "parenthetical": "listing requirements" }, { "page": "522" }, { "page": "526" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/139/0501-01" ] }, { "cite": "131 Ill. 2d 380", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5570093 ], "year": 1985, "pin_cites": [ { "page": "386" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/131/0380-01" ] }, { "cite": "109 Ill. 2d 41", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3126021 ], "pin_cites": [ { "page": "46-47" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/109/0041-01" ] }, { "cite": "106 Ill. 2d 111", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138130 ], "pin_cites": [ { "page": "122-23" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/106/0111-01" ] }, { "cite": "38 Ill. 2d 223", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2861276 ], "opinion_index": 1, "case_paths": [ "/ill-2d/38/0223-01" ] }, { "cite": "139 Ill. 2d 501", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5573900 ], "weight": 2, "pin_cites": [ { "page": "508" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/139/0501-01" ] }, { "cite": "191 Ill. App. 3d 982", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2512392 ], "pin_cites": [ { "page": "993" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/191/0982-01" ] }, { "cite": "90 Ill. App. 3d 967", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3160713 ], "pin_cites": [ { "page": "970" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/90/0967-01" ] }, { "cite": "113 Ill. App. 3d 172", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3626612 ], "weight": 2, "pin_cites": [ { "page": "177" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/113/0172-01" ] }, { "cite": "160 Ill. App. 3d 999", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3649304 ], "weight": 3, "pin_cites": [ { "page": "1003" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/160/0999-01" ] }, { "cite": "139 Ill. 2d 501", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5573900 ], "pin_cites": [ { "page": "508" } ], "opinion_index": 3, "case_paths": [ "/ill-2d/139/0501-01" ] } ], "analysis": { "cardinality": 1246, "char_count": 34746, "ocr_confidence": 0.787, "pagerank": { "raw": 2.90919079074991e-07, "percentile": 0.8456639750039481 }, "sha256": "5e354d5557f315cab6a8415b42cfdccc4a47359a6b4f8e2a8bc4b6c7e5b53f70", "simhash": "1:1ef7c50043ee344b", "word_count": 5724 }, "last_updated": "2023-07-14T18:19:00.426754+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CYNTHIA LEONE, Appellee, v. THE CITY OF CHICAGO, Appellant." ], "opinions": [ { "text": "JUSTICE HARRISON\ndelivered the opinion of the court:\nCynthia Leone brought an action against the City of Chicago to recover damages for personal injuries she sustained when struck by an automobile during the course of a traffic stop by Chicago police. A jury concluded that Leone\u2019s injuries were caused by the negligence of the police officer involved and, based on that negligence, found the City liable to her under the common law \u201cspecial duty\u201d exception to municipal immunity for injuries negligently caused by police officers while performing their official duties. Damages of $316,000 were awarded. The circuit court entered judgment on the jury\u2019s verdict and denied the City\u2019s post-trial motion. After the appellate court affirmed (235 Ill. App. 3d 595), we granted the City\u2019s petition for leave to appeal (134 Ill. 2d R. 315). We now affirm.\nThe facts are these. While returning home from work on the afternoon of October 19, 1983, Cynthia Leone was stopped by Chicago police officer William M. Coffey for driving with an expired license plate. The stop occurred on a two-lane street. It had been raining and the pavement was wet. Although traffic was fairly heavy, Coffey directed Leone to halt in one of the active traffic lanes. He made no attempt to have her move to a less travelled area. Coffey then parked his police vehicle two or three feet behind her car. According to Leone, the distance between the two vehicles was only \u201cenough room to just walk through.\u201d This was contrary to recommended police department procedure, which called for officers to leave between 8 and 15 feet between their cars and the cars they stop. In addition, Coffey failed to activate the emergency lights on top of his vehicle or to provide any other type of visual or audible warning signals as a caution to oncoming traffic.\nWhen Coffey advised Leone of the reason for the stop, she expressed surprise and disbelief. Coffey responded by saying, \u201cIf you don\u2019t believe me, then get out and look.\u201d Leone understood this to be an order for her to exit her vehicle, which she did. She was then led by Coffey to the back of the car, between her vehicle and Coffey\u2019s, to examine the license plate. As she stood there discussing the matter with Coffey, an automobile driven by Calvin Blakely collided with the rear of Coffey\u2019s police vehicle, pushing that vehicle into Leone\u2019s legs with such force that she was thrown up against her own car. Her left knee was dislocated; her right knee broken. When her legs could no longer support her, she collapsed onto the pavement. She remained there until an ambulance transported her to the hospital, where she underwent surgery.\nLeone subsequently sought recovery for her damages from Coffey\u2019s employer, the City of Chicago. As ultimately submitted to the jury, Leone\u2019s claim against the City was in two counts. Count I was premised on allegations that Coffey had conducted the traffic stop negligently, while count II asserted that his acts or omissions in effectuating the stop constituted willful and wanton conduct. The jury concluded that Coffey had not acted willfully or wantonly, but that he was guilty of negligence. It therefore returned a verdict in favor of the City on count II, but in favor of Leone on count I. It is the viability of that negligence count which is the subject of this appeal.\nThe courts of this State have held as a matter of common law that municipalities are generally not liable for failure to supply police or fire protection (Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 363), nor are they liable for injuries negligently caused by police officers or fire fighters while performing their official duties (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 509). An exception to these rules has been recognized where the municipality owes the injured party a special duty that is different from its duty to the general public. To invoke this special duty exception, the courts have held that a plaintiff must prove four elements: (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 or omissions 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. Burdinie, 139 Ill. 2d at 507-08.\nLeone\u2019s recovery against the City on her negligence claim in count I was premised on the existence of such a special duty here. The City now argues, however, that the special duty exception to municipal immunity cannot be squared with the express terms of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1-101 et seq. (West 1992)). That Act provides that a \u201c[ljocal public entity,\u201d which includes a municipality (745 ILCS 10/1 \u2014 206 (West 1992)), is not liable for failure to provide adequate police protection (745 ILCS 10/4 \u2014 102 (West 1992)) or for injury resulting from an act or omission of a public employee in the execution or enforcement of any law \u201cunless such act or omission constitutes willful and wanton conduct\u201d (745 ILCS 10/ 2-109, 2-202 (West 1992)).\nIn light of this explicit statutory language, the City contends that the special duty exception can remain as a viable principle of law only by superseding the provisions of the Act. The City argues, however, that because the special duty exception is a judicially created doctrine, it cannot override the Act without offending section 4, article XIII, of the 1970 Illinois Constitution (Ill. Const. 1970, art. XIII, \u00a74), which it construes as investing the General Assembly with exclusive authority for determining whether and under what circumstances a municipality should be immune from liability.\nWithout intimating any view on the merits of this argument, we note simply that it is not properly before us. At trial, the City made no challenge to the constitutional viability of the special duty exception. Its contention was simply that a special duty could not be established on the facts present here. Having tried and lost the case on this theory, the City cannot assail the circuit court\u2019s judgment on a wholly different basis on appeal. Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 148.\nThe City argues, in the alternative, that even if the special duty exception is constitutional, it should still be interpreted to require a showing that the misdeeds of the offending public' employee were willful and wanton within the meaning of section 2 \u2014 202 of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/2-202 (West 1992)). The City forgets the very basic principle that what the special duty doctrine is an exception to is the rule that municipalities are immune from liability for injuries negligently caused by police officers or fire fighters while performing their official duties. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 509.) It necessarily follows from this principle that when the exception is activated, liability will be imposed for the employee\u2019s negligence. (Anthony v. City of Chicago (1988), 168 Ill. App. 3d 733, 736.) No higher degree of fault need be established.\nWe note, moreover, that section 2 \u2014 202, by its terms, already eliminates municipal immunity for injury resulting from the willful and wanton acts or omissions of public employees in the enforcement or execution of the law. This is so even where no special duty is present. Incorporating a willful and wanton requirement into the special duty doctrine would therefore yield the anomalous result of making recovery more difficult under the doctrine than it already is under the statute. Under these circumstances, the doctrine would cease to operate as an \u201cexception\u201d to sovereign immunity and would instead become an expansion of it. This is a total subversion of the rule.\nThe City\u2019s final argument on appeal is that the special duty exception is inapplicable here because the evidence failed to show that Officer Coffey was \u201cuniquely aware\u201d of the particular danger or risk to which Leone was exposed or that Leone was under Coffey\u2019s \u201cdirect and immediate control\u201d when she was injured. The appellate court correctly held otherwise. The requirement of \u201cdirect and immediate control\u201d is met where the public employee \u201ccreates a position of peril ultimately injurious to a plaintiff, as opposed to situations where a plaintiff merely seeks protection from the public employee that is not normally provided. [Citation.]\u201d (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 525.) This court has recently interpreted this to mean\n\u201cthat the control element arises when the public employee initiates the circumstances which create the dangerous situation. Thus, where a police officer or firefighter initiates the dangerous situation without any suggestion from the plaintiff, it has been held that the plaintiff is under the control of the police or fire department.\u201d (Burdinie, 139 Ill. 2d at 525-26.)\nAs even our cursory recitation of the facts has shown, these circumstances were plainly present with Officer Coffey\u2019s traffic stop here. By directing Leone to halt in an active traffic lane in inclement weather without providing warnings to oncoming traffic, by parking so close behind her, and by then directing her to the area between his car and hers to discuss the matter, Officer Coffey placed Leone in a highly perilous position. No part of this was done at Leone\u2019s suggestion. The dangerous situation was the creation of Coffey and Coffey alone. \u25a0\nWe likewise find no merit to the City\u2019s contention that Coffey was not, in fact, \u201cuniquely aware\u201d of the particular danger or risk to which he had exposed Leone. The \u201cunique awareness\u201d element of the special duty exception, derived from this court\u2019s decision in Huey v. Town of Cicero (1968), 41 Ill. 2d 361, has been construed to mean simply that the municipality must be on notice that a preventable danger threatens a particular individual of whom it is aware. (Fryman v. JMK/ Skewer, Inc. (1985), 137 Ill. App. 3d 611, 617; McGuckin v. Chicago Union Station (1989), 191 Ill. App. 3d 982, 992.) In this case, as the appellate court correctly observed (235 Ill. App. 3d at 601), there was ample evidence that Officer Coffey fully appreciated the danger posed to Leone by conducting the stop as he did. There was also ample proof that this danger was fully avoidable. The record showed, for example, that Coffey could have directed Leone to stop somewhere other than in an active traffic lane or that he could have parked a safer distance behind her as the police training manual recommended, and it was certainly not necessary for him to carry on a discussion with Leone in the street between their two vehicles. A parking lane and sidewalk were only a few steps away.\nFor the foregoing reasons, the judgment of the appellate court is affirmed.\nAffirmed.", "type": "majority", "author": "JUSTICE HARRISON" }, { "text": "CHIEF JUSTICE MILLER,\ndissenting:\nLike the majority, I would decide the present appeal solely on the basis of the special duty exception to the general rule of municipal nonliability in matters involving police or fire protection. Unlike the majority, however, I do not believe that the plaintiff has satisfied the requirements of that exception. Accordingly, I dissent.\nAs a preliminary matter, I agree with the majority that the defendant has waived its contention that the courts\u2019 continued recognition of the special duty exception, a common law creation, cannot be reconciled with the existence of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1\u2014 101 et seq. (West 1992)). As the majority opinion notes, the defendant failed to urge this particular theory in the trial court; having lost in that forum, the defendant may not now challenge the adverse judgment on a fresh ground. See Fawcett v. Reinertsen (1989), 131 Ill. 2d 380, 386; Richardson v. Economy Fire & Casualty Co. (1985), 109 Ill. 2d 41, 46-47.\nTo be sure, the waiver rule expresses a principle of administrative convenience, not a limitation on our jurisdiction. (See, e.g., In re Estate of Swiecicki (1985), 106 Ill. 2d 111, 122-23.) Yet this appeal is not the proper vehicle for an examination of the complex relationship between the Tort Immunity Act and the special duty exception. The latter doctrine has coexisted with the Act for several decades, and, at least until recently (see Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501), it was assumed that there was no inconsistency between the two. Because application of the special duty exception to the present case would not represent a departure from settled precedent (cf. Hux v. Raben (1967), 38 Ill. 2d 223 (litigant\u2019s waiver of issue will be overlooked when necessary to protect consistent development of law)), I see no compelling reason to consider the issue here.\nContrary to the majority\u2019s view, however, I do not believe that the plaintiff has satisfied all the requirements of the special duty exception. The evidence in this case establishes neither that the police officer was uniquely aware of the danger posed to the plaintiff, nor that the plaintiff was under the officer\u2019s \u201cdirect and immediate control\u201d at the relevant time. Thus, the present plaintiff has not satisfied at least two of the four requirements for application of the special duty exception (see Burdinie, 139 Ill. 2d at 507-08 (listing requirements)), and her action against the municipality must therefore fail.\nFirst, the plaintiff has not established that the police officer was uniquely aware of the potential dangers in this case. Although the evidence shows that the officer knew or should have known of the risks in effecting a traffic stop in the manner that occurred here, this testimony demonstrates nothing more than the officer\u2019s heightened awareness of those dangers. As Burdinie instructs, \u201cSuperior knowledge, in and of itself, does not create a duty.\u201d (Burdinie, 139 Ill. 2d at 522.) There was no evidence in the present case that the officer was aware of any particular danger threatening the plaintiff.\nMoreover, the plaintiff has not shown that her injury occurred while she was under the police officer\u2019s \u201cdirect and immediate control.\u201d The plaintiff herself testified that she asked the officer whether she could inspect the license plate and that the officer granted her permission to do so. Clearly, this evidence does not sustain the conelusion that the officer ordered the plaintiff to leave the car. The test is an objective one: What would a reasonable person have believed at the time in question? (See Burdinie, 139 Ill. 2d at 526.) Notwithstanding the plaintiffs testimony that she thought that she was being ordered out of the car, the evidence in this case supports but one conclusion: that the plaintiff was not directed to get out of her car, and that, prompted by curiosity or disbelief, she exited her vehicle because she wanted to. Notably, even the plaintiff\u2019s own expert witness agreed that the plaintiff was not ordered to leave the car. In the absence of a command by the officer placing the motorist in a position of peril, one must conclude that the requisite control was lacking.\nFor the reasons stated, I respectfully dissent.", "type": "dissent", "author": "CHIEF JUSTICE MILLER," }, { "text": "JUSTICE BILANDIC,\nalso dissenting:\nI respectfully dissent from the majority\u2019s decision. It is undisputed that, pursuant to the Tort Immunity Act (745 ILCS 10/1 \u2014 101 et seq. (West 1992)) municipalities are not liable for injuries resulting from an act or omission of a police officer in the execution or enforcement of any law \u201cunless such act or omission constitutes willful and wanton conduct\u201d (745 ILCS 10/2 \u2014 202, 2 \u2014 109 (West 1992)). The jury in the instant action specifically found that Officer Coffey was not acting willfully and wantonly at the time the plaintiff sustained her injuries. The majority nevertheless concludes that the City of Chicago is liable for the injuries the plaintiff suffered as a result of Officer Coffey\u2019s ordinary negligence in enforcing traffic laws.\nThe majority concludes that the facts of this case fall within the judicially created \u201cspecial duty\u201d rule. Even if I assume, arguendo, that the majority is correct in concluding that the City waived its right to contest the validity of the \u201cspecial duty\u201d rule, I must disagree with the majority\u2019s conclusion that the rule may be invoked under the facts of this case.\nOur courts have held th\u00e1t the following four-prong test must be satisfied before plaintiffs may invoke the \u201cspecial duty\u201d doctrine:\n\u201c \u2018(1) the municipality must be uniquely aware of the particular danger or risk to which the plaintiff is exposed [citation];\n(2) there must be allegations of specific acts or omissions on the part of the municipality [citation];\n(3) the specific acts or omissions *** must be either affirmative or wilful in nature [citation]; and\n(4) the injury must occur while the plaintiff is under the direct and immediate control of employees or agents of the municipality [citation].\u2019 \u201d (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 508, quoting Bell v. Village of Midlothian (1980), 90 Ill. App. 3d 967, 970.)\nHere, even if the plaintiff could establish the first three elements of this test, the record conclusively establishes that Leone was not under Officer Coffey\u2019s \u201cdirect and immediate control\u201d when she was injured. The facts establish that Officer Coffey pulled Leone over to the side of the road so that he could write her a ticket for having an expired license plate. When Coffey told Leone that the plate was expired, she refused to believe him. According to Leone, Coffey responded, \u201cIf you don\u2019t believe me, then get out and look.\u201d Leone testified that she interpreted this comment as an order to get out of her car and look at the license plate.\nThese facts do not support a finding that Leone was under the direct and immediate control of Officer Coffey. In determining whether the control prong of the special duty rule is satisfied, courts have considered whether the municipality \u201cwas responsible for the occurrence which gave rise to the heed for protection.\u201d (McGuckin v. Chicago Union Station (1989), 191 Ill. App. 3d 982, 993.) In this case, Leone and not Coffey was responsible for the occurrence which gave rise to her injuries. Leone drove her vehicle with an expired license plate, thereby necessitating Officer Coffey\u2019s traffic stop. Despite the fact that Leone knew or should have known that her license plate was expired, she nevertheless persisted in challenging Officer Coffey\u2019s assertion to that effect. Officer Coffey never ordered or compelled Leone to leave her car. Rather, he simply elected not to be swayed by her persistent effort to avoid receiving a traffic citation. Leone was always free to remain in her automobile and acknowledge that she had violated the law. Instead, she elected to persist in her disbelief and, as a means of proving that her disbelief was \u201cgenuine,\u201d left her vehicle to \u201cverify\u201d the expiration date on her license plate. Officer Coffey did not cause Leone to place herself at risk. It was Leone\u2019s decision to dispute Officer Coffey\u2019s statements. It was also her choice to leave her vehicle to examine her expired plate.\nNot surprisingly, Leone claimed at trial that she believed that Officer Coffey was ordering her to exit her vehicle. Direct and immediate control, however, cannot be established simply because an injured plaintiff claims that she \u201csubjectively believed\u201d that a police officer was issuing a direct order. Rather, the direct and immediate control element must be measured by an objective view of the officer\u2019s actions, and is satisfied only if a reasonable person in the plaintiff\u2019s position would have concluded that the officer was issuing a direct order. (Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501.) Otherwise, any contact between a private citizen and a police officer will be sufficient to establish the direct and immediate control element necessary to create a special duty.\nApplying an objective, rather than a subjective, test, it is evident that Coffey never \u201cordered\u201d Leone to exit her vehicle and never assumed direct control over her person. Officer Coffey\u2019s conduct was similar to that at issue in Marvin v. Chicago Transit Authority (1983), 113 Ill. App. 3d 172. The plaintiff in Marvin was attacked near the cashier\u2019s window in a subway station. A Chicago police officer chased the youths away, but refused the plaintiff\u2019s request to accompany him down to the platform. The officer told the plaintiff that the youths were going in a different direction. When the plaintiff reached the platform, however, the youths were waiting and beat him severely. The appellate court affirmed the dismissal of the plaintiff\u2019s complaint, holding that \u201c[t]he mere disjunctive allegation that the police officer \u2018directed, permitted or caused\u2019 plaintiff to descend to the platform *** does not meet this *** requirement.\u201d Marvin, 113 Ill. App. 3d at 177.\nThe police officer\u2019s suggestion in Marvin that it was safe for the plaintiff to descend to the subway platform was similar to Officer Coffey\u2019s suggestion in this case that Leone could see for herself that her license plate was expired. In neither case did the police officer\u2019s suggestion qualify as a direct order or an assumption of direct and immediate control over the plaintiff. Rather, in both cases the injured plaintiffs chose to place themselves in a position of peril and then sought to blame the officer involved for \u201cforcing\u201d them to make that choice.\nFurthermore, even if the four requisite elements of the special duty rule were satisfied in this case, the City is not liable for Officer Coffey\u2019s conduct because his actions were not willful and wanton. Consequently, the City is immune from liability under the express terms of the Tort Immunity Act.\nThe majority rejects this claim because it finds that the \u201cspecial duty\u201d doctrine is an exception to the statutory immunity conferred upon municipalities under the Tort Immunity Act. According to the majority, once the four elements of the \u201cspecial duty\u201d doctrine are established, a municipality is liable for injuries resulting from a police officer\u2019s ordinary negligence in enforcing laws. The majority\u2019s decision reflects a fundamental misconception of the relationship between the \u201cspecial duty\u201d doctrine and the Tort Immunity Act.\nThe \u201cspecial duty\u201d doctrine is not an exception to the common law doctrine of sovereign immunity or to the statutory immunity conferred upon municipalities in the Tort Immunity Act, as the majority suggests. Rather, the doctrine is an exception to the common law \u201cpublic duty\u201d rule. The public duty rule provides that law enforcement officials owe no duty to protect individual citizens. Rather, the police owe a duty to the public at large to enforce and execute laws for the well-being of the entire community. (Schaffrath v. Village of Buffalo Grove (1987), 160 Ill. App. 3d 999.) The public duty rule reflects a policy decision that the police cannot guarantee the personal safety of every member of the community. (Schaffrath v. Village of Buffalo Grove (1987), 160 Ill. App. 3d 999.) The rule protects municipalities from liability in tort by establishing the principle that police officers have no enforceable duty to protect individual citizens from harm.\nThe public duty rule does not apply, however, where the police voluntarily assume a duty to an individual so as to elevate that person\u2019s status to something more than just being a member of the public. (Schaffrath v. Village of Buffalo Grove (1987), 160 Ill. App. 3d 999, 1003.) A police officer will be found to have assumed a \u201cspecial duty\u201d to protect a particular plaintiff only if the plaintiff satisfies the four-pronged test described above. Thus, the \u201cspecial duty\u201d doctrine arose as an exception to the general rule that the police owe no duty to a particular injured plaintiff. The public duty rule and the special duty exception to that rule are analytical tools used to determine whether a municipality and its employee owe an enforceable duty to an individual claimant. 18 E. McQuillan, Municipal Corporations \u00a753.04.25, at 165-66 (3d ed. 1993).\nAn injured plaintiff must prove that a police officer assumed a \u201cspecial duty\u201d to protect him or her from injury as part of the plaintiffs prima facie case against a municipality. Satisfaction of the \u201cspecial duty\u201d rule, however, does not necessarily demonstrate that the municipality is liable in tort for the plaintiff\u2019s injury. The plaintiff must also demonstrate that the municipality or its employee breached that duty and is liable for resulting damages. In an ordinary case, defendants are liable in tort when they negligently breach a duty of care owed to the plaintiff. The Tort Immunity Act, however, affords municipalities with immunity for negligent acts of police officers engaged in the enforcement and execution of laws. Under the Act, a municipality is liable in tort to an injured plaintiff only when a police officer engages in willful and wanton misconduct. Thus, the \u201cspecial duty\u201d rule determines whether the municipality owed a duty to a particular plaintiff, while the Tort Immunity Act establishes the standard of care at which a municipality will be held liable for breach of that duty.\nA plaintiff who is injured as a consequence of a police officer\u2019s act or omission in the execution and enforcement of the law must satisfy two separate hurdles to obtain recovery from the municipality employing that police officer. The plaintiff must first prove the existence of a \u201cspecial duty\u201d to establish that the police officer and the municipality owed an enforceable duty to her in the first place. Even where a \u201cspecial duty\u201d exists, however, the municipality is immune from liability for breach of that special duty, unless the plaintiff also proves that the officer\u2019s breach was willful and wanton within the meaning of the Tort Immunity Act. Even if Leone overcame the first hurdle and demonstrated that Officer Coffey assumed a special duty to protect her, she failed to demonstrate that Coffey acted willfully and wantonly. Therefore, the City is immune from liability for Leone\u2019s injuries under the express provisions of the Tort Immunity Act.", "type": "dissent", "author": "JUSTICE BILANDIC," }, { "text": "JUSTICE HEIPLE,\nalso dissenting:\nThis case deals with the claim of an injured female motorist whose legs were crushed between the bumpers of her car and the police car which had stopped her for a license plate violation. She seeks recovery from the policeman\u2019s employer, the City of Chicago. The facts are that upon being pulled over and advised by the officer that her plates had expired, she expressed disbelief. The officer then suggested that if she did not believe it, she could get out and look for herself. In the process of doing just that, the police car was rear-ended by an errant motorist which pinned the unfortunate woman\u2019s legs between the rear bumper of her car and the front bumper of the police car.\nFollowing a jury trial against the City, the jury awarded the plaintiff $422,000, which was reduced by 25% for plaintiff\u2019s contributory negligence. The net jury award and judgment amounted to $316,500. Neither the amount of the award nor the allocation of negligence is at issue in this appeal. What is at issue is the law applicable to the case. That is to say, does the doctrine of sovereign immunity shield the City from liability? And, does the special duty exception to sovereign immunity carve out an exception which will save the plaintiff\u2019s verdict?\nSOVEREIGN IMMUNITY\nOur Illinois Constitution has abolished sovereign immunity \u201c[ejxcept as the General Assembly may provide by law.\u201d (Ill. Const. 1970, art. XIII, \u00a74.) The Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) provides that municipalities are not liable for injury resulting from an act or omission in the execution or enforcement of any law \u201cunless such act or omission constitutes willful and wanton conduct.\u201d 745 ILCS 10/2-109, 2-202 (West 1992).\nSPECIAL DUTY EXCEPTION\nIn derogation of the Tort Immunity Act, the courts have carved out a common law exception which is styled the special duty exception. The effect of this exception is to render municipalities liable for ordinary negligence where four elements are present, namely: (1) the municipality is uniquely aware of the particular danger or risk to which plaintiff is exposed; (2) there are specific negligent acts or omissions on the part of the municipality; (3) the specific acts or omissions 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. Burdinie v. Village of Glendale Heights (1990), 139 Ill. 2d 501, 508.\nTHE MAJORITY OPINION\nThe majority opinion, in affirming the judgment against the City, declines to consider the City\u2019s argument that the special duty exception is a usurpation of the Illinois Constitution and the Tort Immunity Act which was passed in pursuance thereof because the constitutional argument v/as first raised on appeal. Next, the majority concludes that the four elements of the special duty exception were met.\nANALYSIS\nContrary to the assertion of the majority, this court is not bound to disregard a constitutional issue simply because it was not raised at the trial level. When the interests of justice require it, we can and should consider any issue that is germane to the case whether or not it was argued below or presented at all. This is, after all, the Supreme Court of Illinois. As such, we are the ultimate and final arbiters of the law of this State. We are not obliged to overlook the Illinois Constitution, which is the supreme law in this State, merely because a litigant may have failed to assert it below. This case presents an appropriate opportunity to scrutinize and settle an issue of constitutional dimension that affects every municipal government in Illinois.\nSeveral additional observations \u00e1re in order. First, any caring person must feel some degree of sympathy for the injured plaintiff and hope that there would be some mechanism to give her compensation. Second, there is no legal liability on the part of the policeman or the City of Chicago.\nThere is no liability because sovereign immunity bars it; because the courts cannot, by expounding a so-called special duty exception, legitimately override the Illinois Constitution and Acts passed in pursuance thereof; and finally, because even if the special duty exception were to be applied, it does not fit the facts of this case.\nThe first element of the special duty exception was not met since there was no unique awareness of the particular danger of standing between two stopped cars along the shoulder of a busy highway. Such awareness should be expected of any person using the highway. The fourth element of immediate control was not met since the police officer did not order the woman to place herself between the two cars. He simply told her she could check the license plate herself if she wanted to. She had no obligation to do so.\nWhile the majority opinion does not expressly acknowledge it, its decision represents an attempt to do equity to an injured plaintiff in the face of law which clearly bars recovery. Although the individual plaintiff in the instant case is benefitted by this decision, that benefit is imposed at the defendant\u2019s cost. And more ominously, the general law applicable to future cases has been rendered incoherent. Moreover, the holding has exceeded this court\u2019s legitimate authority by overturning sub silentio a constitutionally authorized legislative act mandating the doctrine of sovereign immunity as applied to Illinois municipalities.\nThe current trend in tort law seems to be developing into a two-step process. The first step is to determine whether someone has been injured. The second step is to determine who should pay for the injury. The second step, as in the case at hand, often requires credulity as to the facts and a careless regard for the application of the law. The majority opinion here is consistent with that process.\nIn fairness, it must be noted that this trend did not begin with the instant case. There is ample precedent for it. In fact, the entire special use doctrine is a judicial effort to evade a law that judges do not like. That is to say, it represents a judicial attempt to whittle away at and, in a broader sense, to overthrow the doctrine of sovereign immunity.\nIf I may inject a personal note, I do not like the doctrine of sovereign immunity. It was unfair and antisocial dogma in its inception and it remains so today. Citizens should have recourse against government units for acts of ordinary negligence. Private corporations may be sued for ordinary negligence. Private citizens may likewise be sued. Municipal corporations should be subject to the same liabilities. Municipalities can either carry insurance or decide to bear the risk of being self-insurers. In either case they are in a superior position to bear the risk of negligent acts than is the hapless plaintiff who may be injured, maimed or killed by those negligent acts. My dissent in the case at hand is not because I lack sympathy for the injured plaintiff nor because I like the doctrine of sovereign immunity. Rather, I dissent because I believe that this court has a duty to follow the law and to apply it in a coherent and consistent manner. Failure to do so is productive of anarchy and chaos. There is a mechanism to change the law. In the case at hand, the Illinois General Assembly has the constitutional authority to do so. I would prefer that it would. Until that day, however, I regard it as an evil for this or any other court to disregard the law and to misinterpret the facts in an effort to reach what may be regarded as a fair or equitable result in a particular case.\nFor the reasons given, I respectfully dissent.", "type": "dissent", "author": "JUSTICE HEIPLE," } ], "attorneys": [ "Kelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon and Brian Trubitt, of counsel), for appellant.", "Joseph R. Curcio, of Chicago (Jose B. Villasenor, of counsel), for appellee.", "Flynn, Murphy, Ryan & Seyring, of Chicago (Richard T. Ryan, Mark F. Smolens and Richard L. Jones, of counsel), for amicus curiae Illinois Governmental Association of Pools.", "Gary K. Laatsch, of Pavalon & Gifford, of Chicago, for amicus curiae Illinois Trial Lawyers Association." ], "corrections": "", "head_matter": "(No. 74422.\nCYNTHIA LEONE, Appellee, v. THE CITY OF CHICAGO, Appellant.\nOpinion filed July 22, 1993.\nMILLER, C.J., and BILANDIC and HEIPLE, JJ., dissenting.\nKelly R. Welsh, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon and Brian Trubitt, of counsel), for appellant.\nJoseph R. Curcio, of Chicago (Jose B. Villasenor, of counsel), for appellee.\nFlynn, Murphy, Ryan & Seyring, of Chicago (Richard T. Ryan, Mark F. Smolens and Richard L. Jones, of counsel), for amicus curiae Illinois Governmental Association of Pools.\nGary K. Laatsch, of Pavalon & Gifford, of Chicago, for amicus curiae Illinois Trial Lawyers Association." }, "file_name": "0033-01", "first_page_order": 43, "last_page_order": 63 }