{ "id": 3626612, "name": "CHARLES MARVIN et al., Plaintiffs-Appellants, v. THE CHICAGO TRANSIT AUTHORITY, Defendant.-(The City of Chicago, Defendant-Appellee.)", "name_abbreviation": "Marvin v. Chicago Transit Authority", "decision_date": "1983-02-04", "docket_number": "No. 81-2172", "first_page": "172", "last_page": "179", "citations": [ { "type": "official", "cite": "113 Ill. App. 3d 172" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "403 N.E.2d 555", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "82 Ill. App. 3d 1054", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3222914 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/82/1054-01" ] }, { "cite": "396 N.E.2d 524", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "77 Ill. 2d 313", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5490227 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-2d/77/0313-01" ] }, { "cite": "199 N.E.2d 769", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "774" } ], "opinion_index": 0 }, { "cite": "31 Ill. 2d 69", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2832377 ], "weight": 2, "pin_cites": [ { "page": "85-86" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/31/0069-01" ] }, { "cite": "399 N.E.2d 596", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "78 Ill. 2d 204", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3074180 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/ill-2d/78/0204-01" ] }, { "cite": "412 N.E.2d 472", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "82 Ill. 2d 313", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5474568 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-2d/82/0313-01" ] }, { "cite": "55 N.E.2d 710", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "714" } ], "opinion_index": 0 }, { "cite": "323 Ill. App. 364", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 4966880, 4970806 ], "pin_cites": [ { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/ill-app/323/0364-02", "/ill-app/323/0364-01" ] }, { "cite": "225 N.E.2d 67", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "81 Ill. App. 2d 1", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2543567 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/81/0001-01" ] }, { "cite": "275 N.E.2d 429", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "1 Ill. App. 3d 890", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5314737, 5315394 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ill-app-3d/1/0890-02", "/ill-app-3d/1/0890-01" ] }, { "cite": "91 S. Ct. 2230", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "29 L. Ed. 2d 696", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "403 U.S. 919", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12033347, 12033251, 12033502, 12033032, 12033162, 12033395, 12033555, 12033205, 12033461, 12032981, 12033082, 12033118 ], "opinion_index": 0, "case_paths": [ "/us/403/0919-08", "/us/403/0919-07", "/us/403/0919-11", "/us/403/0919-02", "/us/403/0919-05", "/us/403/0919-09", "/us/403/0919-12", "/us/403/0919-06", "/us/403/0919-10", "/us/403/0919-01", "/us/403/0919-03", "/us/403/0919-04" ] }, { "cite": "262 N.E.2d 829", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 0 }, { "cite": "128 Ill. App. 2d 157", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2652996 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ill-app-2d/128/0157-01" ] }, { "cite": "219 N.E.2d 147", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "71 Ill. App. 2d 373", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2587475 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ill-app-2d/71/0373-01" ] }, { "cite": "414 N.E.2d 104", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "106" } ], "opinion_index": 0 }, { "cite": "90 Ill. App. 3d 967", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3160713 ], "weight": 2, "pin_cites": [ { "page": "970" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/90/0967-01" ] }, { "cite": "410 N.E.2d 610", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "612" } ], "opinion_index": 0 }, { "cite": "88 Ill. App. 3d 443", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3173475 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "445" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/88/0443-01" ] }, { "cite": "440 N.E.2d 942", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "947" } ], "opinion_index": 0 }, { "cite": "109 Ill. App. 3d 400", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5451078 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "407" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0400-01" ] }, { "cite": "166 N.E.2d 93", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "25 Ill. App. 2d 121", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5785274 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/25/0121-01" ] }, { "cite": "243 N.E.2d 214", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "41 Ill. 2d 361", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853150 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/ill-2d/41/0361-01" ] } ], "analysis": { "cardinality": 782, "char_count": 14580, "ocr_confidence": 0.737, "pagerank": { "raw": 3.9611765097654484e-07, "percentile": 0.9042859255500997 }, "sha256": "e895f2d156dceedd9e43a7705d86f85fbfbef7ec94dac0c4c2824d83faefd0cd", "simhash": "1:1fb93cd9604dd56f", "word_count": 2406 }, "last_updated": "2023-07-14T20:40:35.449940+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "CHARLES MARVIN et al., Plaintiffs-Appellants, v. THE CHICAGO TRANSIT AUTHORITY, Defendant.\u2014(The City of Chicago, Defendant-Appellee.)" ], "opinions": [ { "text": "JUSTICE MEJDA\ndelivered the opinion of the court:\nThis is an appeal from an order striking and dismissing counts V and VI of plaintiffs\u2019 first amended complaint against the defendant municipality. Charles Marvin and Rosemary Marvin sued the Chicago Transit Authority and the city of Chicago (hereinafter City) for personal injuries suffered by Charles Marvin (hereinafter plaintiff) when he was beaten by six youths at a subway platform in Chicago. At the time of the alleged beating, the subway station was patrolled by a Chicago police officer.\nThe issue presented for review is whether the circuit court erred in granting the City\u2019s motion to be dismissed as a party defendant pursuant to section 4 \u2014 102 of the Local Governmental and Governmental Employees Tort Immunity Act (111. Rev. Stat. 1981, ch. 85, par. 4 \u2014 102). On appeal, plaintiff contends that the City\u2019s liability is not limited by this act because: (1) the City assumed the duty of a common carrier by undertaking responsibility for policing the rapid transit system, and (2) the City owed a \u201cspecial duty\u201d to plaintiff under the specific circumstances of his injury. We affirm the order of the circuit court.\nThe alleged facts are as follows. On July 9, 1976, plaintiff, a Chicago Sun-Times copy# cutter, left his job at 2:30 a.m. and walked alone to the subway station at Grand Avenue and State Street in the city of Chicago. At the station, he approached the cashier\u2019s window to pay his fare. Six youths had arrived and were arguing with the cashier about the validity of several transfers. These youths were loud and appeared to be intoxicated. The youths were blocking the entrance when plaintiff walked up and told the cashier that he wished to pay his fare. While plaintiff attempted to pay his fare, one youth struck him, swore at him and threatened him. Meanwhile, Harrison Mailey, a Chicago police officer, emerged from another booth and stood three to five feet away. Two of the youths jumped over the turnstile while plaintiff paid his fare. The officer told the youths to use their transfers, saying, \u201cJust get the hell out and go on downstairs.\u201d Before leaving, one of the youths again struck and threatened plaintiff.\nThe six then went to the right and down the stairs that led to the southbound platform. Plaintiff asked Officer Hailey if he would accompany him to the northbound platform. The policeman declined, telling plaintiff that he was \u201cgoing to be all right\u201d on the northbound platform because the youths had gone to the southbound one. When plaintiff walked down two flights of stairs to the landing for the northbound trains, he encountered the six youths on the northbound platform, sitting on a bench 10 feet to his right. As a result, the six again attacked and beat him, whereby he sustained severe injuries. During the beating, Office Hailey was upstairs talking to the ticket agent.\nCount V of the amended complaint alleges that the City assumed a \u201cspecial relationship\u201d to passengers when it directed officers of its \u201cHass Transit Unit\u201d to assume \u201calmost full responsibility for policing the rapid transit system and protecting the riding public.\u201d It also alleges that the City breached its duty when it negligently \u201cdirected, permitted or caused\u201d plaintiff to descend without protection into the subway, and when it improperly failed to accompany him onto the platform.\nCount VI alleges that the City undertook to perform the duties of a common carrier with regard to providing passenger security, and that it breached such duties by its failure to provide plaintiff with adequate police protection, by its failure to warn him of the possible dangers, and by its failure to provide for his safety under the unique circumstances of the case.\nThe defendant City moved to strike the complaint and dismiss the case as to its liability on the basis of section 4 \u2014 102 of the Local Governmental and Governmental Employees Tort Immunity Act. Plaintiff then filed a transcript of his own deposition testimony and a memorandum in opposition to the motion. The circuit court ordered that the City be dismissed as a party defendant and that the cause of action continue as to defendant Chicago Transit Authority.\nOpinion\nIt is well settled in Illinois that generally a municipality is not liable for its failure to supply police protection. (Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 243 N.E.2d 214; Adamczyk v. Zambelli (1960), 25 Ill. App. 2d 121, 166 N.E.2d 93.) This common law concept of sovereign immunity is expressed in section 4 \u2014 102 of the Local Governmental and Governmental Employees Tort Immunity Act (111. Rev. Stat. 1981, ch. 85, par. 4 \u2014 102) which provides: \u201cNeither a local public entity nor a public employee is liable *** for failure to provide adequate police protection or service, failure to prevent the commission of crimes and failure to apprehend criminals.\u201d It is also well settled that the duty of the police is to preserve the well-being of the community at large, and that such duty is generally not owed to specific individuals. (Huey; Curtis v. County of Cook (1982), 109 Ill. App. 3d 400, 440 N.E.2d 942; Porter v. City of Urbana (1980), 88 Ill. App. 3d 443, 410 N.E.2d 610.) This rule rests upon public policy considerations and \u201cembodies the conclusion that a police department\u2019s negligence \u2014 its oversights, blunders, omissions \u2014 is not the proximate or legal cause of harms committed by others.\u201d Porter v. City of Urbana (1980), 88 Ill. App. 3d 443, 445, 410 N.E.2d 610, 612.\nTo survive a motion to dismiss, it is not sufficient that a complaint merely allege a duty, but the pleader must allege facts from which the law will raise a duty, and facts must be alleged showing an omission of that duty and resulting injury. (Bell v. Village of Midlothian (1980), 90 Ill. App. 3d 967, 414 N.E.2d 104.) Thus, we must look to the instant complaint to determine if plaintiff has alleged sufficient facts from which the law will raise a duty and which will therefore support the cause of action in view of the tort immunity statute.\nIn count V of plaintiff\u2019s first amended complaint, plaintiff alleges that the City assumed a \u201cspecial relationship\u201d to passengers of the rapid transit system by assuming \u201calmost full\u201d responsibility to police its facilities. It is further alleged that the City breached its duty to exercise ordinary care toward plaintiff when it negligently \u201cdirected, permitted or caused\u201d plaintiff to descend into the subway without protection, and by its failure to accompany him when it knew or should have known of the danger of injury to him. On appeal, plaintiff contends that this count states a cause of action under the \u201cspecial duty\u201d exception to the general rule that municipalities are not liable for failure to exercise general police powers.\nThe general requirements of the \u201cspecial duty\u201d exception, whereby the police owe a special duty to an individual, as contrasted to the public at large, are as follows: (1) the municipality must be uniquely aware of the particular danger or risk to which plaintiff is exposed; (2) there must be allegations of specific acts or omissions on the part of the municipality; (3) the specific acts or omissions must be either affirmative or wilful in nature; and (4) the injury must occur while the plaintiff is under the direct and immediate control of employees or agents of the municipality. (Curtis v. County of Cook (1982), 109 Ill. App. 3d 400, 407, 440 N.E.2d 942, 947; Bell v. Village of Midlothian (1980), 90 Ill. App. 3d 967, 970, 414 N.E.2d 104, 106.) Here, even assuming plaintiffs have satisfied the first three requirements, they have made no allegations which lead to the conclusion that the plaintiff\u2019s injuries occurred while he was under the direct and immediate control of a police officer of the City. The mere disjunctive allegation that the police officer \u201cdirected, permitted, or caused\u201d plaintiff to descend to the platform in question does not meet this latter requirement. It is also noted, parenthetically, that any favorable inference from such pleading is betrayed further by plaintiff\u2019s own deposition testimony which clearly demonstrates the absence of such direct and immediate control of him by the police at the time of his unfortunate injury. Accordingly, we must uphold the dismissal of the allegations of count V which assert the City\u2019s negligence based upon the \u201cspecial duty\u201d exception. Accord, Curtis, but c.f Gardner v. Village of Chicago Ridge (1966), 71 Ill. App. 2d 373, 219 N.E.2d 147, appeal after remand (1970), 128 Ill. App. 2d 157, 262 N.E.2d 829, cert. denied (1971), 403 U.S. 919, 29 L. Ed. 2d 696, 91 S. Ct. 2230, which found a cause of action where the plaintiff was attacked again when he accompanied police officers to identify some persons who had attacked him earlier in the day.\nWith regard to count VI of plaintiff\u2019s first amended complaint, plaintiff argues that the tort immunity provision is not applicable to the City due to the City\u2019s affirmative undertaking of the protection of fare-paying passengers of the rapid transit system located within its boundaries. It is plaintiff\u2019s contention that the City thereby has assumed a significant aspect of the common law duties of a common carrier. Plaintiff theorizes that the City, by assuming the role of policing the rapid transit stations, became subject to the Metropolitan Transit Authority Act (111. Rev. Stat. 1981, ch. lll2/3, par. 301 et seq.) and thereby is not entitled to immunity under the provision of the Local Governmental and Governmental Employees Tort Immunity Act, which states:\n\u201c*** [T]his Act does not apply to any entity organized under or subject to the \u2018Metropolitan Transit Authority Act\u2019 ***.\u201d (111. Rev. Stat. 1981, ch. 85, par. 2 \u2014 101(b).)\nFinally, plaintiff concludes that the City, through its police officers, was bound to exercise a high degree of care toward him, a passenger of the transit system.\nA motion to strike and dismiss admits facts well pleaded, but not conclusions or opinions alleged in the pleadings, such as unsupported conclusions of law, and the motion does not admit any situation which is legally or factually impossible. (E.g., Zamouski v. Gerrard (1971), 1 Ill. App. 3d 890, 275 N.E.2d 429; Palier v. Dreis & Krump Manufacturing Co. (1967), 81 Ill. App. 2d 1, 225 N.E.2d 67.) As defined by Illinois courts, a \u201ccommon carrier\u201d is \u201cone who undertakes for the public to transport from place to place such persons *** as choose to employ him for hire.\u201d (Illinois Highway Transportation Co. v. Hantel (1944), 323 Ill. App. 364, 374, 55 N.E.2d 710, 714.) Plaintiff here has alleged insufficient facts to support the conclusion that the City has undertaken the operation of a common carrier under this definition. Regarding the applicability of the Metropolitan Transit Authority Act, we observe that this act creates the Chicago Transit Authority and it invests no powers and creates no duties or liabilities upon the City of Chicago or its police department. We therefore find nothing in this act which would expand the traditional common law duty of police departments and their officers owed to the public at large. Accordingly, we find this act inapplicable to the existence of any duty owed by the City in the situation at bar.\nNext, plaintiff relies upon the general tort principle that liability can arise from the negligent performance of a voluntary undertaking for the protection of third persons. (See generally Cross v. Wells Fargo Alarm Services (1980), 82 Ill. 2d 313, 412 N.E.2d 472; Pippin v. Chicago Housing Authority (1979), 78 Ill. 2d 204, 399 N.E.2d 596; Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 199 N.E.2d 769; Restatement (Second) of Torts sec. 324A (1966).) While these authorities have held that a duty voluntarily assumed must be performed with \u201cdue care\u201d or \u201c '*** such competence and skill as one possesses\u2019 \u201d (Nelson v. Union Wire Rope Corp. (1964), 31 Ill. 2d 69, 85-86, 199 N.E.2d 769, 774), or with reasonable care (Cross; Pippin), there is no requirement that such duty must encompass a high degree of care as alleged by plaintiff\u2019s complaint.\nThe existence of a duty ultimately depends upon choice between competing policies. (Prosser, Torts sec. 53 (4th ed. 1971).) Recognizing a duty of the highest degree of care owned generally by police officers to passengers of the Chicago Transit Authority, as urged by plaintiff, would place the police department in the position of virtual insurers of the personal safety of every passenger, certainly an untenable result. As previously stated, the duty of the police is to preserve the well-being of the community at large, and no recovery is permitted for breach of this duty unless the police have assumed a special relationship to a particular person. The plaintiff's allegations in count VI are insufficient to take this case out of the general rule denying liability. We therefore agree with the trial court\u2019s dismissal of this count for failure to state a cause of action against the city of Chicago.\nFinally, plaintiff argues that the \u201cdual capacity doctrine\u201d of work-era\u2019 compensation law creates an alternate basis for the imposition of liability upon the City. The doctrine permits recovery by an employee from an employer if the injuries resulted from a breach of a duty of an employer independent from those imposed upon him as an employer. (See generally Smith v. Metropolitan Sanitary District (1979), 77 Ill. 2d 313, 396 N.E.2d 524; Goetz v. Avildsen Tool & Machines, Inc. (1980), 82 Ill. App. 3d 1054, 403 N.E.2d 555.) This doctrine has no relevance to the case at bar, and we need not discuss its validity under the circumstances herein.\nIn reviewing the instant dismissal order, we have considered only matters relating to the sufficiency of the complaint., W\u00bf hold that counts V and VI of the instant amended complaint, standing alone and unaided, fail to demonstrate any possibility of recovery against the city of Chicago.\nFor the foregoing reasons, the order of the circuit court is affirmed.\nAffirmed.\nWILSON, P.J., and SULLIVAN, J., concur.", "type": "majority", "author": "JUSTICE MEJDA" } ], "attorneys": [ "William L. Barr, Jr., of Steinberg, Polacek & Goodman, of Chicago, for appellants.", "Stanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Mary K. Rochford, Assistant Corporation Counsel, of counsel), for appellee." ], "corrections": "", "head_matter": "CHARLES MARVIN et al., Plaintiffs-Appellants, v. THE CHICAGO TRANSIT AUTHORITY, Defendant.\u2014(The City of Chicago, Defendant-Appellee.)\nFirst District (5th Division)\nNo. 81\u20142172\nOpinion filed February 4, 1983.\n\u2014 Rehearing denied March 24, 1983.\nWilliam L. Barr, Jr., of Steinberg, Polacek & Goodman, of Chicago, for appellants.\nStanley Garber, Corporation Counsel, of Chicago (Robert R. Retke and Mary K. Rochford, Assistant Corporation Counsel, of counsel), for appellee." }, "file_name": "0172-01", "first_page_order": 194, "last_page_order": 201 }