{ "id": 821401, "name": "GAIL P. HARINEK, Appellee, v. 161 NORTH CLARK STREET LTD. PARTNERSHIP et al. (The City of Chicago, Appellant)", "name_abbreviation": "Harinek v. 161 North Clark Street Ltd. Partnership", "decision_date": "1998-02-20", "docket_number": "No. 82155", "first_page": "335", "last_page": "359", "citations": [ { "type": "official", "cite": "181 Ill. 2d 335" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "176 Ill. 2d 179", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544917 ], "year": 1997, "pin_cites": [ { "page": "196" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/176/0179-01" ] }, { "cite": "71 Ill. App. 2d 373", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2587475 ], "weight": 2, "year": 1966, "pin_cites": [ { "page": "378" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/71/0373-01" ] }, { "cite": "354 Ill. 234", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5290826 ], "year": 1933, "pin_cites": [ { "page": "237-38" } ], "opinion_index": 0, "case_paths": [ "/ill/354/0234-01" ] }, { "cite": "156 Ill. 2d 33", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777561 ], "year": 1993, "pin_cites": [ { "page": "47", "parenthetical": "Bilandic, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0033-01" ] }, { "cite": "168 Ill. 2d 312", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 307252 ], "year": 1995, "pin_cites": [ { "page": "334", "parenthetical": "Freeman, J., specially concurring" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/168/0312-01" ] }, { "cite": "41 Ill. 2d 361", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853150 ], "weight": 4, "year": 1968, "pin_cites": [ { "page": "363" }, { "page": "363" }, { "page": "363" }, { "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": 3, "year": 1990, "pin_cites": [ { "page": "506" }, { "page": "510" }, { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/139/0501-01" ] }, { "cite": "27 Ill. 2d 538", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5357631 ], "year": 1963, "pin_cites": [ { "page": "540", "parenthetical": "holding that in Molitor \"the sovereign immunity of municipal corporations in tort actions was abolished\"" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/27/0538-01" ] }, { "cite": "18 Ill. 2d 11", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5328152 ], "year": 1959, "opinion_index": 0, "case_paths": [ "/ill-2d/18/0011-01" ] }, { "cite": "167 Ill. 2d 466", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 222800 ], "year": 1995, "pin_cites": [ { "page": "474" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/167/0466-01" ] }, { "cite": "147 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3278377 ], "year": 1992, "pin_cites": [ { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/147/0001-01" ] }, { "cite": "171 Ill. 2d 378", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57332 ], "weight": 5, "year": 1996, "pin_cites": [ { "page": "388" }, { "page": "389" }, { "page": "385" }, { "page": "386" }, { "page": "388" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/171/0378-01" ] }, { "cite": "178 Ill. 2d 370", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 385561 ], "year": 1997, "pin_cites": [ { "page": "375" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/178/0370-01" ] }, { "cite": "283 Ill. App. 3d 491", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 182714 ], "weight": 5, "pin_cites": [ { "page": "494-95" }, { "page": "496" }, { "page": "497" }, { "page": "496" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/283/0491-01" ] }, { "cite": "68 Ill. 2d 223", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5810566 ], "year": 1977, "pin_cites": [ { "page": "234" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/68/0223-01" ] }, { "cite": "176 Ill. 2d 179", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544917 ], "year": 1997, "pin_cites": [ { "page": "193-95" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/176/0179-01" ] }, { "cite": "167 Ill. 2d 466", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 222800 ], "year": 1995, "opinion_index": 1, "case_paths": [ "/ill-2d/167/0466-01" ] }, { "cite": "178 Ill. 2d 370", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 385561 ], "year": 1997, "pin_cites": [ { "page": "381" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/178/0370-01" ] }, { "cite": "175 Ill. 2d 471", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 295791 ], "year": 1997, "pin_cites": [ { "page": "479" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/175/0471-01" ] }, { "cite": "165 Ill. 2d 482", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483558 ], "year": 1995, "pin_cites": [ { "page": "492" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/165/0482-01" ] }, { "cite": "88 Ill. App. 3d 443", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3173475 ], "year": 1980, "pin_cites": [ { "page": "445" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/88/0443-01" ] }, { "cite": "129 Ill. App. 3d 658", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3489190 ], "year": 1984, "pin_cites": [ { "page": "661" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/129/0658-01" ] }, { "cite": "168 Ill. 2d 312", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 307252 ], "year": 1995, "pin_cites": [ { "parenthetical": "Freeman, J., specially concurring" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/168/0312-01" ] }, { "cite": "41 Ill. 2d 361", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853150 ], "year": 1968, "opinion_index": 2, "case_paths": [ "/ill-2d/41/0361-01" ] }, { "cite": "139 Ill. 2d 501", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5573900 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "507" }, { "page": "525-26" }, { "page": "511" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/139/0501-01" ] }, { "cite": "18 Ill. 2d 11", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5328152 ], "year": 1959, "opinion_index": 2, "case_paths": [ "/ill-2d/18/0011-01" ] }, { "cite": "176 Ill. 2d 179", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544917 ], "year": 1997, "pin_cites": [ { "page": "213", "parenthetical": "McMorrow, J., concurring in part and dissenting in part" } ], "opinion_index": 3, "case_paths": [ "/ill-2d/176/0179-01" ] }, { "cite": "171 Ill. 2d 378", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57332 ], "year": 1996, "pin_cites": [ { "page": "399", "parenthetical": "McMorrow, J., dissenting" } ], "opinion_index": 3, "case_paths": [ "/ill-2d/171/0378-01" ] }, { "cite": "238 Ill. App. 3d 83", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5154182 ], "year": 1992, "pin_cites": [ { "page": "92" } ], "opinion_index": 4, "case_paths": [ "/ill-app-3d/238/0083-01" ] }, { "cite": "225 Ill. App. 3d 466", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5244578 ], "year": 1992, "pin_cites": [ { "page": "469" } ], "opinion_index": 4, "case_paths": [ "/ill-app-3d/225/0466-01" ] }, { "cite": "42 U.S.C. \u00a7 1983", "category": "laws:leg_statute", "reporter": "U.S.C.", "weight": 2, "year": 1982, "opinion_index": 4 }, { "cite": "176 Ill. 2d 289", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 544867 ], "year": 1997, "pin_cites": [ { "page": "324-26", "parenthetical": "Harrison, J., dissenting" } ], "opinion_index": 4, "case_paths": [ "/ill-2d/176/0289-01" ] }, { "cite": "117 Ill. 2d 90", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5545521 ], "year": 1987, "pin_cites": [ { "page": "100" } ], "opinion_index": 4, "case_paths": [ "/ill-2d/117/0090-01" ] }, { "cite": "139 Ill. 2d 206", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5574264 ], "year": 1990, "pin_cites": [ { "page": "215" } ], "opinion_index": 4, "case_paths": [ "/ill-2d/139/0206-01" ] }, { "cite": "152 Ill. 2d 381", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5602819 ], "year": 1992, "pin_cites": [ { "page": "388" } ], "opinion_index": 4, "case_paths": [ "/ill-2d/152/0381-01" ] }, { "cite": "161 Ill. 2d 374", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783173 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "390" }, { "page": "401-02" } ], "opinion_index": 4, "case_paths": [ "/ill-2d/161/0374-01" ] }, { "cite": "145 Ill. 2d 273", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5596413 ], "year": 1991, "pin_cites": [ { "page": "278" } ], "opinion_index": 4, "case_paths": [ "/ill-2d/145/0273-01" ] }, { "cite": "165 Ill. 2d 482", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483558 ], "year": 1995, "pin_cites": [ { "page": "492" } ], "opinion_index": 4, "case_paths": [ "/ill-2d/165/0482-01" ] }, { "cite": "156 Ill. 2d 33", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777561 ], "weight": 2, "year": 1993, "pin_cites": [ { "page": "47-48", "parenthetical": "Bilandic, J., dissenting" } ], "opinion_index": 4, "case_paths": [ "/ill-2d/156/0033-01" ] }, { "cite": "139 Ill. 2d 501", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5573900 ], "year": 1990, "pin_cites": [ { "page": "507" } ], "opinion_index": 4, "case_paths": [ "/ill-2d/139/0501-01" ] }, { "cite": "167 Ill. 2d 466", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 222800 ], "year": 1995, "pin_cites": [ { "page": "477" } ], "opinion_index": 4, "case_paths": [ "/ill-2d/167/0466-01" ] } ], "analysis": { "cardinality": 1321, "char_count": 42751, "ocr_confidence": 0.775, "pagerank": { "raw": 7.991671701531688e-07, "percentile": 0.973488608795339 }, "sha256": "2106ed4c5f56a3a1aeef53ca0ea58dabb5a9d8eee1c3a0909781d249f4e6c25c", "simhash": "1:bfae955902cc34d0", "word_count": 6894 }, "last_updated": "2023-07-14T19:13:08.265983+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GAIL P. HARINEK, Appellee, v. 161 NORTH CLARK STREET LTD. PARTNERSHIP et al. (The City of Chicago, Appellant)." ], "opinions": [ { "text": "JUSTICE HEIPLE\ndelivered the opinion of the court:\nThe City of Chicago appeals a judgment of the appellate court reversing the circuit court of Cook County\u2019s dismissal of count II of plaintiff Gail P. Harinek\u2019s second-amended complaint. In addition, plaintiff seeks cross-relief reversing the appellate court\u2019s affirmance of the trial court\u2019s dismissal of count III of the complaint. The appellate court concluded that count II was sufficient to allow plaintiff to maintain an action against the City for alleged negligence in planning and conducting a fire drill, but that count III failed adequately to allege that the City\u2019s conduct was willful and wanton. For the reasons that follow, we hold that the complaint is insufficient to support either of these claims.\nBACKGROUND\nCount I of the complaint alleged that defendant 161 North Clark Street Ltd. Partnership (the Partnership) owned and operated an office building in which plaintiff worked. Count I further alleged that the Partnership negligently allowed a heavy door with no window to be constructed near an elevator corridor and failed to provide adequate warnings as to the dangerous condition of the door. The count alleged that as a result of this conduct, plaintiff was hit and injured by the door during a fire drill.\nCount II alleged that the City of Chicago\u2019s fire marshal personally planned and conducted a fire drill in the building on April 28, 1993. Count II further alleged that, during the fire drill, the marshal negligently directed a large group of people, including plaintiff, to stand in the vicinity of the door, and that as a result, plaintiff was hit and injured by the door when someone opened it without warning. The count also alleged that the marshall was negligent in failing to inspect the door to ascertain whether it was safe, failing to warn those passing through and standing by the door of its danger, and failing to establish alternate routes not involving the door for use during the fire drill.\nCount III repeated the factual allegations of count II, but asserted further that the fire marshal\u2019s conduct was willful and wanton because he was on notice that the area in which he directed the group of people to stand was unsuitable for that purpose.\nBoth the Partnership and the City moved to dismiss the complaint under section 2 \u2014 615 of the Code of Civil Procedure (735 ILCS 5/2 \u2014 615 (West 1994)). The circuit court denied the Partnership\u2019s motion to dismiss count I, but granted the City\u2019s motion to dismiss counts II and III based on the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (745 ILCS 10/ 2 \u2014 101 (West 1994)). The court also found that there was no just cause to delay enforcement or appeal of its order dismissing counts II and III (see 134 Ill. 2d R. 304(a)).\nThe appellate court reversed the circuit court\u2019s dismissal of count II, ruling that the Act does not immunize the City from liability for the fire marshal\u2019s conduct as described in the complaint. 283 Ill. App. 3d 491. The court first held that sections 5 \u2014 102 and 5 \u2014 103(b) of the Act (745 ILCS 10/5 \u2014 102, 5 \u2014 103(b) (West 1994)) are inapplicable because these sections pertain only to firefighters\u2019 performance in fighting a fire or to the City\u2019s failure to provide adequate personnel, equipment, or facilities for fire protection. 283 Ill. App. 3d at 494-95. The court also held that section 2 \u2014 201 of the Act (745 ILCS 10/2 \u2014 201 (West 1994)) does not preclude liability because the fire marshal\u2019s conduct in \u201cdirecting plaintiff to stand behind a door, though discretionary, is not a policy determination within the meaning of the Act.\u201d 283 Ill. App. 3d at 496. The court affirmed, however, the trial court\u2019s dismissal of count III, holding that plaintiffs injury was not the result of willful and wanton conduct on the part of the fire marshal. 283 Ill. App. 3d at 497. This court allowed the City\u2019s petition for leave to appeal (166 Ill. 2d R. 315(a)).\nANALYSIS\nDiscretionary Acts\nThe City contends that permitting it to be held liable for the injuries plaintiff sustained during the fire drill would violate sections 2 \u2014 109 and 2 \u2014 201 of the Tort Immunity Act (745 ILCS 10/2 \u2014 109, 2 \u2014 201 (West 1994)). These sections provide as follows:\n\u201cA local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable.\u201d 745 ILCS 10/2 \u2014 109 (West 1994).\n\u201cExcept as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused.\u201d 745 ILCS 10/2 \u2014 201 (West 1994).\nThe Illinois Constitution of 1970 abolished sovereign immunity in Illinois, except as the General Assembly may provide by law. Ill. Const. 1970, art. XIII, \u00a7 4. Consequently, the Tort Immunity Act governs whether and in what situations local governmental units are immune from civil liability. Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 375 (1997). In construing the Act, our primary goal is to ascertain and give effect to the intention of the legislature. Barnett v. Zion Park District, 171 Ill. 2d 378, 388 (1996). We will not depart from the plain language of the Act by reading into it exceptions, limitations, or conditions that conflict with the express legislative intent. Barnett, 171 Ill. 2d at 389.\nThe City argues that sections 2 \u2014 109 and 2 \u2014 201 of the Act immunize a local public entity from liability if its act or omission which allegedly caused a plaintiff\u2019s injury constituted an exercise of discretion. The City asserts that the appellate court erred in requiring that the act or omission also had been a policy determination. The City contends that, prior to the instant case, no court had construed section 2 \u2014 201 as requiring that a public entity\u2019s act or omission had been both an exercise of discretion and a policy determination. The City also argues that even if the statute is construed to require that the act or omission had been a policy determination, the fire marshal\u2019s conduct as described in the complaint satisfies this requirement.\nPlaintiff responds that the clear language of the statute provides immunity only when the public entity\u2019s act or omission was both an exercise of discretion and a policy determination. Plaintiff argues that these two characteristics of a public entity\u2019s conduct are separate and distinct, and must both be satisfied independently for immunity to attach. Plaintiff contends further that the appellate court correctly determined that the fire marshal\u2019s conduct in this case did not constitute a policy determination, but asserts that the court erred in holding that the marshal\u2019s conduct was discretionary.\nThis court has not previously addressed the issue of whether section 2 \u2014 201 requires that a public entity\u2019s act or omission be both an exercise of discretion and a policy determination. By its plain language, the statute immunizes a public employee who serves in \u201ca position involving the determination of policy or the exercise of discretion\u201d from liability for injuries allegedly caused by the employee\u2019s \u201cact or omission in determining policy when acting in the exercise of such discretion.\u201d 745 ILCS 10/2 \u2014 201 (West 1994). This language makes clear that the statute is concerned with both the type of position held by the employee and the type of action performed or omitted by the employee.\nAccording to the statute, an employee may be granted immunity if he holds either a position involving the determination of policy or a position involving the exercise of discretion. The statute is equally clear, however, that immunity will not attach unless the plaintiffs injury results from an act performed or omitted by the employee in determining policy and in exercising discretion. The employee\u2019s position thus may be one which involves either determining policy or exercising discretion, but, as the appellate court correctly held, the act or omission must be both a determination of policy and an exercise of discretion.\nIn the instant case, plaintiff apparently concedes that the fire marshal\u2019s position involves either the determination of policy or the exercise of discretion. Plaintiff contends, however, that the appellate court correctly determined that the acts and omissions of the marshal described in the complaint were not determinations of policy. We disagree. The appellate court held that the fire marshal\u2019s act of \u201cdirecting plaintiff to stand behind a door, though discretionary, is not a policy determination within the meaning of the Act.\u201d 283 Ill. App. 3d at 496. In so holding, the appellate court mischaracterized the nature of the conduct described in the complaint.\nThe complaint alleges that the City of Chicago fire department \u201cplanned, controlled, operated, and implemented\u201d a fire drill at plaintiff\u2019s place of employment on the date she was injured. The complaint further alleges that the fire marshal assembled plaintiff and her fellow employees in a corridor near the door which struck plaintiff, but that the marshal failed to place any warnings on the door and failed to provide adequate alternate routes for use during the fire drill. The complaint also alleges that the assembling of plaintiff and her fellow employees in the corridor in the vicinity of the door was carried out pursuant to a plan developed by the marshal before the fire drill began.\nWe hold that these allegations describe acts and omissions of the fire marshal in determining fire department policy. This court has previously defined \u201cpolicy decisions made by a municipality\u201d as \u201cthose decisions which require the municipality to balance competing interests and to make a judgment call as to what solution will best serve each of those interests.\u201d West v. Kirkham, 147 Ill. 2d 1, 11 (1992). The conduct described in the instant complaint falls squarely within this definition. The fire marshal is responsible for planning and conducting fire drills in the City of Chicago. In planning these drills, the marshall must balance various interests which may compete for the time and resources of the department, including the interests of efficiency and safety. The alleged acts and omissions outlined in the complaint, such as the marshal\u2019s decisions regarding where to assemble the participants and whether to provide warning signs and alternate routing, were all part of his attempts to balance these interests. Accordingly, these acts and omissions were undertaken in determining policy within the meaning of the statute.\nPlaintiff contends in the alternative that the appellate court erred in holding that the fire marshal\u2019s conduct was discretionary. In construing section 2 \u2014 201 of the Act, this court has held that\n\u201cdiscretionary acts are those which are unique to a particular public office, while ministerial acts are those which a person performs on a given state of facts in a prescribed manner, in obedience to the mandate of legal authority, and without reference to the official\u2019s discretion as to the propriety of the act.\u201d Snyder v. Curran Township, 167 Ill. 2d 466, 474 (1995).\nUnder these standards, the fire marshal\u2019s conduct described in the complaint clearly constituted an exercise of discretion. The marshal bears sole and final responsibility for planning and executing fire drills in buildings throughout Chicago. He is under no legal mandate to perform these duties in a prescribed manner; rather, he exercises his discretion in determining how, when, and where to hold drills such as the one in which plaintiff was injured. The appellate court was therefore correct in concluding that the fire marshal\u2019s conduct was discretionary.\nBecause the fire marshal occupied a position involving the determination of policy or the exercise of discretion, and because his conduct as described in the complaint constituted acts or omissions in determining policy and exercising discretion, section 2 \u2014 201 of the Act immunizes the City from liability for plaintiff\u2019s injuries.\nThe \u201cSpecial Duty\u201d Doctrine\nPlaintiff contends that even if the fire marshal\u2019s conduct is immunized by section 2 \u2014 201 of the Act, the City may nevertheless be held liable because the marshal owed plaintiff a \u201cspecial duty\u201d to protect her from the injuries which she suffered. The City responds that when a public entity is found to be immunized from liability by the Act, courts are not authorized to make exceptions to the Act which would nevertheless permit the imposition of liability.\nUnder the doctrine of sovereign immunity, a governmental unit in Illinois was immune from tort liability. Barnett v. Zion Park District, 171 Ill. 2d 378, 385 (1996). In 1959, however, this court abolished the sovereign immunity of municipal corporations in tort actions. Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11 (1959); see also Walker v. Forest Preserve District, 27 Ill. 2d 538, 540 (1963) (holding that in Molitor \u201cthe sovereign immunity of municipal corporations in tort actions was abolished\u201d). In response to Molitor, the General Assembly in 1965 enacted the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1 \u2014 101 et seq. (West 1994)). The Act adopted the general principle from Molitor that local governmental units are liable in tort, but limited this liability with an extensive list of immunities based on specific government functions. Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 506 (1990).\nThe ratification of the Illinois Constitution of 1970 validated both Molitor and the Tort Immunity Act. Article XIII, section 4, of the Illinois Constitution reads as follows: \u201cExcept as the General Assembly may provide by law, sovereign immunity in this State is abolished.\u201d Ill. Const. 1970, art. XIII, \u00a7 4. This provision embodies the presumptive rule from Molitor that units of local government are subject to tort liability, but \u201cmakes the General Assembly the ultimate authority\u201d in determining whether such a unit is nevertheless immune from liability. Burdinie, 139 Ill. 2d at 510. Therefore, governmental units are now liable in tort on the same basis as private tortfeasors unless a valid statute dealing with tort immunity imposes conditions upon that liability. Barnett, 171 Ill. 2d at 386. Where such statutory conditions are found to exist, tort liability is precluded.\nThe \u201cspecial duty\u201d doctrine which plaintiff seeks to apply in the instant case originated as an exception to the common law \u201cpublic duty\u201d rule. According to the public duty rule, a municipality could not be held liable for its failure to provide adequate governmental services, such as police and fire protection. Huey v. Town of Cicero, 41 Ill. 2d 361, 363 (1968). The rationale for this rule was that the duty of a municipality to provide governmental services was owed to the public at large and therefore took precedence over any duty owed to a particular plaintiff. See Calloway v. Kinkelaar, 168 Ill. 2d 312, 334 (1995) (Freeman, J., specially concurring); Leone v. City of Chicago, 156 Ill. 2d 33, 47 (1993) (Bilandic, J., dissenting); Gebhardt v. Village of LaGrange Park, 354 Ill. 234, 237-38 (1933).\nDespite abolishing common law sovereign immunity in Molitor, this court has nevertheless retained the public duty rule. As the court explained in Huey, the public duty rule exists \u201c[independent of *** common-law concepts of sovereign immunity.\u201d Huey, 41 Ill. 2d at 363. Therefore, although, absent a statutory immunity, governmental units are now liable in tort on the same basis as private tortfeasors, the public duty rule nevertheless prevents such units from being held liable for their failure to provide adequate governmental services.\nIn 1966, the appellate court first recognized an exception to the public duty rule now known as the \u201cspecial duty\u201d doctrine. In Gardner v. Village of Chicago Ridge, 71 Ill. App. 2d 373 (1966), the court held that, notwithstanding the public duty rule, police officers employed by a municipality could be held liable for their failure to protect a plaintiff from injury by others if the facts of the case showed that the officers undertook to exercise a particular duty of care or custody over the plaintiff. Gardner, 71 Ill. App. 2d at 378. Subsequently, in 1968, this court acknowledged that an exception to the public duty rule exists where \u201cthe municipality was under a special duty to a particular individual.\u201d Huey, 41 Ill. 2d at 363.\nPlaintiff in the instant case urges us to apply the special duty doctrine to override the immunity granted the City by the Tort Immunity Act. As this court emphasized in Huey, however, the basis for the public duty rule is \u201c[independent of statutory *** concepts of sovereign immunity.\u201d Huey, 41 Ill. 2d at 363. As we have more recently explained, \u201cthe existence of a duty and the existence of an immunity are separate issues.\u201d Barnett, 171 Ill. 2d at 388. Therefore, the question of whether the City owed plaintiff a duty under the special duty doctrine has no bearing on the separate question of whether the Act immunizes the City from liability for plaintiff\u2019s injuries.\nAs noted previously, article XIII, section 4, of the Illinois Constitution \u201cmakes the General Assembly the ultimate authority in determining whether a unit of local government is immune from tort liability.\u201d Burdinie, 139 Ill. 2d at 510. Thus, when a court finds, on the facts of a particular case, that the General Assembly has granted a public entity immunity from liability, the court may not then negate that statutory immunity by applying a common law exception to a common law rule. Doing so would violate not only the Illinois Constitution\u2019s provision governing sovereign immunity (Ill. Const. 1970, art. XIII, \u00a7 4), but also the Constitution\u2019s separation of powers clause, which provides that no branch of government \u201cshall exercise powers properly belonging to another.\u201d Ill. Const. 1970, art. II, \u00a7 1. The special duty doctrine simply allows courts to impose liability upon a municipality by making an exception to the public duty rule in cases in which the legislature has not granted immunity to the municipality. Thus, the special duty doctrine may not operate to impose liability upon a public entity after a court has found that entity immune from liability under the Tort Immunity Act. Previous holdings to the contrary by this court and the appellate court are hereby overruled.\nIn the instant case, because we find that the Act immunizes the City from liability for plaintiffs injuries, the question of whether the fire marshal had a special duty to plaintiff is irrelevant.\nWillful and Wanton Conduct\nPlaintiff also seeks cross-relief reversing the appellate court\u2019s holding that the fire marshal\u2019s alleged conduct was not willful and wanton. Even willful and wanton conduct, however, cannot deprive a municipality of an immunity granted by section 2 \u2014 201 of the Act (745 ILCS 10/2 \u2014 201 (West 1994)). In re Chicago Flood Litigation, 176 Ill. 2d 179, 196 (1997). Because we find that the City is immune from liability under section 2 \u2014 201, it is unnecessary for us to consider whether the fire marshal\u2019s alleged conduct was willful and wanton.\nCONCLUSION\nFor the reasons stated, we reverse the appellate court\u2019s holding that count II of the complaint was sufficient to state a cause of action against the City, and affirm the circuit court\u2019s dismissal of that count. We also affirm the judgments of the appellate and circuit courts dismissing count III of the complaint.\nAppellate court judgment affirmed in part and reversed in part; circuit court judgment affirmed.\nThe City has not addressed sections 5 \u2014 102 and 5 \u2014 103(b) in its current arguments before this court.", "type": "majority", "author": "JUSTICE HEIPLE" }, { "text": "JUSTICE BILANDIC,\nspecially concurring:\nI fully concur in the majority opinion, with one exception. The majority interprets section 2 \u2014 201 of the Tort Immunity Act (745 ILCS 10/2 \u2014 201 (West 1994)) as requiring an analysis of (1) the type of position held , by the employee and (2) the type of action performed or omitted by the employee. 181 Ill. 2d at 341. As to the second inquiry, the type of action involved, the majority holds that immunity will not attach unless the injury at issue resulted from an act performed or omitted by the employee in determining policy and in exercising discretion. 181 Ill. 2d at 341.1 disagree. I would hold that section 2 \u2014 201 does not require that the act or omission satisfy the independent requirement of being a policy determination before immunity will attach.\nAs the majority concedes, this court has never before determined whether section 2 \u2014 201 requires that a public entity\u2019s act or omission be both an exercise of discretion and a policy determination. 181 Ill. 2d at 341. In my view, this is because the phrase \u201cexercise of discretion\u201d in section 2 \u2014 201 has been readily understood by Illinois courts as encompassing policy determinations. In other words, the phrase \u201cpolicy determination\u201d in section 2 \u2014 201 has not been understood as creating a separate and distinct element that must be satisfied independently for immunity to attach. See Epstein v. Chicago Board of Education, 178 Ill. 2d 370, 381 (1997); In re Chicago Flood Litigation, 176 Ill. 2d 179, 193-95 (1997); Snyder v. Curran Township, 167 Ill. 2d 466 (1995); Mora v. State, 68 Ill. 2d 223, 234 (1977).\nNor does the plain language of section 2 \u2014 201 support the majority\u2019s holding. Section 2 \u2014 201 provides in relevant part:\n\u201c[A] public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused.\u201d (Emphasis added.) 745 ILCS 10/2 \u2014 201 (West 1994).\nThe majority\u2019s interpretation of this language limits immunity to injuries resulting from policy decisions. This interpretation renders section 2 \u2014 201\u2019s reference to the \u201cexercise of such discretion\u201d mere surplusage, because policy decisions are always discretionary. In my view, if the legislature had intended to immunize only injuries resulting from policy decisions, it would have written a shorter provision plainly stating this intent. The General Assembly, however, conferred immunity on employees who are \u201cserving in a position involving the determination of policy or the exercise of discretion.\u201d Additionally the General Assembly provided immunity for any \u201cact or omission in determining policy when acting in the exercise of such discretion.\u201d (Emphasis added.) This language equates \u201cdetermining policy\u201d with the actual \u201cexercise of such discretion.\u201d The use of the modifier term \u201csuch\u201d makes clear that the General Assembly did not consider \u201cdetermining policy\u201d to be separate and distinct from what constitutes an exercise of discretion. Therefore, the language of section 2 \u2014 201, when considered as a whole, manifests the General Assembly\u2019s intent to immunize all injuries resulting when certain public employees exercise their discretion.\nThe majority\u2019s interpretation of section 2 \u2014 201 creates a new distinction between policy determinations and other discretionary decisions and requires that both features be present before immunity will attach. I disagree with this interpretation, for the reasons stated. Nonetheless, I concur in the majority\u2019s judgment because the fire marshal\u2019s decisions under which the plaintiff rests her claim against the City of Chicago were discretionary and, therefore, immunity attaches under sections 2 \u2014 109 and 2 \u2014 201 of the Tort Immunity Act.\nCHIEF JUSTICE FREEMAN joins in this special concurrence.", "type": "concurrence", "author": "JUSTICE BILANDIC," }, { "text": "JUSTICE NICKELS,\nalso specially concurring:\nI agree that plaintiff\u2019s allegations of negligence describe discretionary acts of the fire marshal performed in the execution of governmental policy. Therefore, I agree with the majority\u2019s conclusion that the City is presumptively immune pursuant to the Tort Immunity Act. However, I do not agree with the majority\u2019s treatment of the special duty doctrine. I believe that the special duty doctrine should remain viable as a judicial exception to municipal immunity absent some legislative action abrogating the doctrine.\nIf we were writing upon a clean slate, I would be inclined to agree generally with the analysis presented in the majority opinion relating to the special duty doctrine. The special duty doctrine should have died as a means of evading municipal immunity with the passage of the Tort Immunity Act in 1965. As this court did not even acknowledge the doctrine until 1969 (see Huey v. Town of Cicero, 41 Ill. 2d 361 (1968)), the special duty doctrine should have died before it was born. It did not.\nAt this point, countless cases have applied the special duty doctrine for a period of over 30 years, and it has become engrafted with the Tort Immunity Act. Unlike the majority, I am also compelled to acknowledge that this court has already considered arguments relating to the questionable validity of the doctrine and pronounced that the legislature is the appropriate body to bring about any abrupt change in such long-standing public policy relating to municipal immunity.\nAt its heart, the special duty doctrine is a means of establishing a duty where at common law none would exist under the public duty rule. At common law, municipalities in Illinois owed no duty to the public to supply police or fire protection. Santy v. Bresee, 129 Ill. App. 3d 658, 661 (1984). This \u201cpublic duty\u201d rule prevented a plaintiffs recovery for negligence. Porter v. City of Urbana, 88 Ill. App. 3d 443, 445 (1980). The purpose of the public duty rule is clear: municipalities must not be held as insurers for every crime or fire that may occur in areas under municipal control.\nThe majority is correct to point out that the special duty doctrine operates as an exception to the public duty rule. The special duty doctrine was a recognition that, under certain circumstances, a municipality may impliedly undertake a duty to protect a specific individual from harm. Courts have created a four-part test to determine whether to apply negligence principles to municipal services: (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. Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 507 (1990). This court has further interpreted the control element to require that \u201cthe public employee initiates the circumstances which create the dangerous situation.\u201d Burdinie, 139 Ill. 2d at 525-26.\nThe special duty doctrine did not merely serve to create a duty. Where shown, the existence of a special duty also constituted an exception to municipal immunity. This court abolished the common law doctrine of sovereign immunity for municipal corporations in Molitor v. Kaneland Community Unit District No. 302, 18 Ill. 2d 11 (1959). As the majority points out, the 1970 Constitution confirmed Molitor and expressly left the issue of governmental immunities to the General Assembly. Ill. Const. 1970, art. XIII, \u00a7 4. Illinois courts, however, continued to apply the special duty doctrine as an exception to the statutory Tort Immunity Act. Since 1970, scores of cases have applied the special duty doctrine as a viable exception to municipal immunity. See Calloway v. Kinkelaar, 168 Ill. 2d 312, 339 n.1 (1995) (Freeman, J., specially concurring) (collecting cases).\nWith this history, we do not write upon a clean slate. Unlike the majority, I am reluctant to erase all that has been written without some reasonable impetus for change. I would also note that this court has only recently again acknowledged the continued viability of the special duty doctrine as an exception to the immunities granted in the Tort Immunity Act. In Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 511 (1990), this court stated:\n\u201cWe further recognize that Illinois courts have discussed the special duty exception to the defenses and immunities provided under the Tort Immunity Act in cases decided both before and after the ratification of the present Illinois Constitution.\u201d (Emphasis added.)\nThe court in Burdinie went on to examine the four prongs of the special duty doctrine, refusing to relax the requirements for evading the immunities granted by the Tort Immunity Act. The court concluded that:\n\u201cthe constitutional provision which expressly grants the General Assembly control over municipal immunity convinces us that the legislature is the appropriate body to alter any existing exception to municipal tort immunity as contained in the Tort Immunity Act.\u201d (Emphasis added.) Burdinie, 136 Ill. 2d at 520.\nThus, this court in Burdinie already determined that the consistent application of the special duty doctrine in so many cases over so many years should not be judicially brushed aside. Despite the questionable genesis of the special duty doctrine, I consider the majority\u2019s reversal in this regard to be an affront to principles of stare decisis. In addition, the legislature has apparently acquiesced in the continued application of the special duty doctrine by failing to take up this court\u2019s invitation to address it through the legislative process. See Charles v. Seigfried, 165 Ill. 2d 482, 492 (1995).\nIn passing, I also question the logic supporting the majority\u2019s conclusion that it was the Constitution of 1970 which constituted the death knell of the special duty exception to municipal immunity. In 1965, the General Assembly enacted the first comprehensive version of the Local Governmental and Governmental Employees Immunity Act. Thus, the legislature acted to immunize municipalities and their agents prior to the ratification of the 1970 Constitution, and its provision abrogating sovereign immunity. Presumably, the special duty doctrine should have died as a means of evading municipal immunity with the passage of the Tort Immunity Act in 1965; the ratification of the 1970 Constitution is irrelevant.\nIn closing, I question why the majority need reach the issue of the constitutionality of the special duty doctrine in this case at all. It is well settled that a court should avoid constitutional issues where they are not necessary to the disposition and the case can be decided on nonconstitutional grounds. In re S.G., 175 Ill. 2d 471, 479 (1997). Plaintiff cannot establish a special duty as a matter of law because the fire marshal was not uniquely aware of the danger from the design of the door. In fact, even accepting the allegations in plaintiff\u2019s complaint, it would appear that the fire marshal was completely oblivious to the nature of the risk of harm in ordering the plaintiff to stand near the door. I would reject application of the special duty doctrine on this basis alone. For this reason, I concur in the judgment of the majority dismissing plaintiff\u2019s complaint.", "type": "concurrence", "author": "JUSTICE NICKELS," }, { "text": "JUSTICE McMORROW,\nconcurring in part and dissenting in part:\nI concur in the opinion of my colleagues in all but one respect: I do not agree with the majority\u2019s conclusion that willful and wanton governmental misconduct cannot deprive a municipality of an immunity granted by section 2 \u2014 201 of the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (745 ILCS 10/2 \u2014 201 (West 1994)).\nThe majority again holds that governmental willful and wanton misconduct is immunized from liability unless the statutory immunity provision contains an express exemption for such willful and wanton conduct. As set forth more fully in my separate opinions in Barnett v. Zion Park District, 171 Ill. 2d 378, 399 (1996) (McMorrow, J., dissenting), and In re Chicago Flood Litigation, 176 Ill. 2d 179, 213 (1997) (McMorrow, J., concurring in part and dissenting in part), there are cogent reasons why the rationale underlying grants of governmental immunity for simple negligence should not be impliedly expanded to reach willful and wanton or intentional misconduct. Traditionally, public entities were granted immunities not enjoyed by private entities on the basis that significant expense and burdens may be placed upon the government when lawsuits against public entities are permitted without restriction. In my view, if the evidence shows that the public entity engaged in conduct showing an utter indifference to, or conscious disregard of, the safety of others, then the public entity is not immunized from liability for its willful and wanton misconduct. I continue to adhere to the view that if the Tort Immunity Act is silent on the question of whether governmental willful and wanton misconduct is exempt from immunity, it should not be assumed that such legislative silence translates into a positive or unambiguous intent to grant unconditional immunity.\nFor the reasons stated, I concur in part and dissent in part from the opinion of the majority.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JUSTICE McMORROW," }, { "text": "JUSTICE HARRISON,\ndissenting:\nThe majority\u2019s discussion of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1 \u2014 101 et seq. (West 1994)) is telling in its omission of an important and well-established principle. Because the Act is in derogation of common law, it must be strictly construed against the local public entity or public employee. Aikens v. Morris, 145 Ill. 2d 273, 278 (1991); Snyder v. Curran Township, 167 Ill. 2d 466, 477 (1995). By ignoring this principle, my colleagues are able to invest section 2 \u2014 201 with a meaning so broad as to encompass nearly every official decision made by a municipal employee whose responsibilities include the determination of policy. The General Assembly never intended to confer such blanket immunity, and such immunity is not necessary in order to protect public entities from liability arising from \u201cthe operation of government,\u201d which is the purpose of the Tort Immunity Act (745 ILCS 10/1 \u2014 101.1(a) (West 1994)).\nDeciding to conduct fire drills, establishing when fire drills should be scheduled, formulating guidelines for how fire drills should be carried out, these can all legitimately be regarded as involving matters of City policy. Simply telling a person to stand in a particular place on a particular day when a drill is being carried out, as the marshal is alleged to have done here, cannot. The marshal\u2019s instructions to plaintiff, and his attendant failure to give warnings or provide adequate alternate routes, involved nothing more than the exercise of discretion in implementing the City\u2019s fire drill policy. That is not enough to invoke section 2 \u2014 201\u2019s immunity. As the majority itself correctly recognizes, there must be both an exercise of discretion and a determination of policy. 181 Ill. 2d at 341.\nBecause plaintiff\u2019s injury cannot be said to have resulted from the fire marshal\u2019s act or omission in determining policy, the appellate court was correct in concluding that section 2 \u2014 201 does not immunize the City from liability for the fire marshal\u2019s actions. I would therefore affirm the appellate court\u2019s judgment reversing the dismissal of count II.\nThe absence of section 2 \u2014 201 immunity also means that we should review the sufficiency of count III of plaintiffs complaint, which seeks recovery based on willful and wanton conduct. Contrary to the appellate court, I believe that the facts alleged in plaintiffs complaint would, if true, establish that the fire marshal\u2019s actions exhibited a reckless disregard for the safety of others. The appellate court\u2019s judgment affirming the dismissal of count III should therefore be reversed.\nWithout section 2 \u2014 201 immunity, there is no need to address the special duty doctrine. Because the majority has discussed it at some length, however, I feel that some comment is necessary.\nThose who have followed this court\u2019s recent pronouncements on the doctrine will quickly see that the majority\u2019s discussion today presents a break with how the special duty question has been viewed. Although it gives no attribution, the majority\u2019s analysis appears to be derived from Justice Bilandic\u2019s dissenting opinion in Leone v. City of Chicago, 156 Ill. 2d 33 (1993). In that dissent, Justice Bilandic postulated that the special duty doctrine was not, in fact, an exception to the statutory immunities set forth in the Tort Immunity Act. Leone, 156 Ill. 2d at 47-48 (Bilandic, J., dissenting). Until today, however, the law in Illinois was to the contrary. The rule was that where the special duty doctrine applied, it enabled a plaintiff to escape the statutory immunities granted by the General Assembly to municipalities and their employees. Doe v. Calumet City, 161 Ill. 2d 374, 390 (1994).\nIn Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 507 (1990), this court held that \u201cthe tort liability of a municipality *** is expressly controlled by constitutional provision and legislative prerogative as embodied in the Tort Immunity Act.\u201d I continue to adhere to that view. Accordingly, I am in complete agreement with the proposition that under section 4 of article XIII of our state\u2019s constitution, it is the function of the General Assembly and not the courts to define when and under what circumstances sovereign immunity applies.\nThis construction of the law does not, however, command the conclusion that the special duty exception has been supplanted by statute. To the contrary, I believe that the General Assembly has recognized the continued viability of the doctrine and understands it as having been incorporated into the statutory scheme contained in the Tort Immunity Act.\nThe special duty exception to sovereign immunity is a well-established doctrine that has been consistently recognized by our court and by the appellate court in the decades following promulgation of the Tort Immunity Act and the subsequent ratification of the Illinois Constitution of 1970. Most of the decisions of our court discussing the exception have been cited earlier in this disposition or by the majority. The appellate court cases invoking the doctrine are too numerous to cite.\nThe General Assembly is presumed to know the construction the courts have placed upon a statute (In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 388 (1992)) and is therefore presumed to know of the courts\u2019 continued recognition of the special duty doctrine as an exception to the immunities set forth in the Tort Immunity Act. If the General Assembly believed that the special duty exception was inconsistent with the Act and constituted an improper encroachment upon its authority for defining the terms of sovereign immunity, it could have revised the statute to abolish the doctrine. It has not done so. The Tort Immunity Act has been amended on several occasions since it was originally enacted (see, e.g., 745 ILCS 10/2 \u2014 202, Historical & Statutory Notes, at 806 (Smith-Hurd 1993); 745 ILCS 10/2 \u2014 210, Historical & Statutory Notes, at 199 (Smith-Hurd Supp. 1997); 745 ILCS 10/4 \u2014 105, Historical & Statutory Notes, at 868 (Smith-Hurd 1993)), but none of those amendments have limited or altered the special duty exception in any way.\nUnder these circumstances, I believe that the General Assembly has acquiesced in the view that the statutory immunities set forth in the Tort Immunity Act remain subject to the special duty exception. See Charles v. Seigfried, 165 Ill. 2d 482, 492 (1995). The courts\u2019 explication of the law has, in effect, become part of the statute. People v. Drakeford, 139 Ill. 2d 206, 215 (1990). For us to depart from that position is tantamount to amending the statute. The power to make such amendments, however, lies with the legislature, not the courts. Independent Voters v. Illinois Commerce Comm\u2019n, 117 Ill. 2d 90, 100 (1987). The majority is therefore wrong to abruptly overrule the decades of precedent on the subject. As Justice Nickels aptly observes in his special concurrence, the majority\u2019s actions are an affront to principles of stare decisis. But then, what is new? People v. Burgess, 176 Ill. 2d 289, 324-26 (1997) (Harrison, J., dissenting).\nFinally, I note that there is some unintentional irony in the majority\u2019s decision. In treating the fire marshal\u2019s bad judgment as a matter of municipal policy, the majority no doubt hopes to farther its agenda of protecting the government from liability. Its decision may, however, have just the opposite effect. By adopting an expansive definition of what constitutes municipal policy, the majority\u2019s opinion may inadvertently have just made it easier for plaintiffs to proceed against municipalities under 42 U.S.C. \u00a7 1983 (1982), to which state immunity statutes, including the Tort Immunity Act, provide no defense (see Weiss v. Village of Downers Grove, 225 Ill. App. 3d 466, 469 (1992); Anderson v. Village of Forest Park, 238 Ill. App. 3d 83, 92 (1992)).\nUnder 42 U.S.C. \u00a7 1983 (1982), municipal liability for constitutional violations is conditioned on a showing that the violations were caused by an official policy, custom or usage of the municipality. Doe v. Calumet City, 161 Ill. 2d at 401-02. Establishing that a constitutional violation resulted from official policy has historically been one of the most serious obstacles confronting plaintiffs seeking to recover from municipalities under the statute. With today\u2019s broadened definition of what constitutes official policy, that hurdle has been lowered substantially. While that will not aid the plaintiff in this case, who has claimed no constitutional violation, I can see that it may be of considerable usefulness to others in cases to come.", "type": "dissent", "author": "JUSTICE HARRISON," } ], "attorneys": [ "Susan S. Sher and Brian L. Crowe, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon and Timothy W. Joranko, of counsel), for appellant.", "Gordon & Gordon, Ltd. (Lawrence G. Gordon and Lisa Thaviu, of counsel), and William J. Harte, Ltd. (William J. Harte, Susan R. Schierl and Joan M. Man-nix, of counsel), all of Chicago, for appellee.", "Judge & James, Ltd., of Park Ridge (Jay S. Judge, Kathryn James Anderlik and Edward F. Dutton, of counsel), for amicus curiae Illinois Governmental Association of Pools." ], "corrections": "", "head_matter": "(No. 82155.\nGAIL P. HARINEK, Appellee, v. 161 NORTH CLARK STREET LTD. PARTNERSHIP et al. (The City of Chicago, Appellant).\nOpinion filed February 20, 1998\nRehearing denied March 30, 1998.\nBILANDIC, J., joined by FREEMAN, C.J., specially concurring.\nNICKELS, J., specially concurring.\nMcMORROW, J., concurring in part and dissenting in part.\nHARRISON, J., dissenting.\nSusan S. Sher and Brian L. Crowe, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon and Timothy W. Joranko, of counsel), for appellant.\nGordon & Gordon, Ltd. (Lawrence G. Gordon and Lisa Thaviu, of counsel), and William J. Harte, Ltd. (William J. Harte, Susan R. Schierl and Joan M. Man-nix, of counsel), all of Chicago, for appellee.\nJudge & James, Ltd., of Park Ridge (Jay S. Judge, Kathryn James Anderlik and Edward F. Dutton, of counsel), for amicus curiae Illinois Governmental Association of Pools." }, "file_name": "0335-01", "first_page_order": 347, "last_page_order": 371 }