{ "id": 3649242, "name": "VALERIA JACKSON et al., Plaintiffs-Appellants, v. CHICAGO FIREFIGHTERS UNION, LOCAL NO. 2, et al., Defendants-Appellees (Jane Byrne, Indiv., et al., Defendants)", "name_abbreviation": "Jackson v. Chicago Firefighters Union", "decision_date": "1987-09-08", "docket_number": "No. 85\u20142954", "first_page": "975", "last_page": "982", "citations": [ { "type": "official", "cite": "160 Ill. App. 3d 975" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "219 N.E.2d 1470", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "446 N.E.2d 1183", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1985, "opinion_index": 0 }, { "cite": "113 Ill. App. 3d 172", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3626612 ], "weight": 2, "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/113/0172-01" ] }, { "cite": "219 N.E.2d 147", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "71 Ill. App. 2d 373", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2587475 ], "weight": 3, "year": 1983, "pin_cites": [ { "page": "380" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/71/0373-01" ] }, { "cite": "475 N.E.2d 960", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "131 Ill. App. 3d 505", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3434907 ], "weight": 3, "pin_cites": [ { "page": "507" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/131/0505-01" ] }, { "cite": "460 N.E.2d 342", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "121 Ill. App. 3d 854", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3559207 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/0854-01" ] }, { "cite": "363 N.E.2d 87", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "48 Ill. App. 3d 567", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3372747 ], "weight": 3, "year": 1984, "pin_cites": [ { "page": "569" }, { "page": "570, 363" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/48/0567-01" ] }, { "cite": "484 N.E.2d 422", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "137 Ill. App. 3d 228", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3641244 ], "weight": 2, "pin_cites": [ { "page": "233" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/137/0228-01" ] } ], "analysis": { "cardinality": 700, "char_count": 17995, "ocr_confidence": 0.777, "pagerank": { "raw": 1.4563472477541086e-07, "percentile": 0.655997897946946 }, "sha256": "8d8cc89140aa07fff0b3832102703dd97adad0ea7c3e8803c2f15fca38bde2ef", "simhash": "1:b2d79f0773d3f003", "word_count": 2927 }, "last_updated": "2023-07-14T16:53:05.010141+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "VALERIA JACKSON et al., Plaintiffs-Appellants, v. CHICAGO FIREFIGHTERS UNION, LOCAL NO. 2, et al., Defendants-Appellees (Jane Byrne, Indiv., et al., Defendants)." ], "opinions": [ { "text": "JUSTICE CAMPBELL\ndelivered the opinion of the court:\nThis appeal arises out of a five-count complaint filed by plaintiffs, owners and residents of the premises located at 646 and 648 North Ridgeway, Chicago (the Ridgeway premises), against defendants: the Chicago Firefighters Union, Local No. 2; Frank Muscare, president of the union; the city of Chicago; Jane Byrne, mayor of Chicago; Richard Brzeczek, superintendent of the Chicago police department; and certain Chicago police officers and fire fighters, seeking recovery for personal and property damage allegedly incurred as the result of defendant fire fighters\u2019 failure to tend to a fire which occurred at the Ridgeway premises on February 22, 1980. In their complaint, plaintiffs alleged: negligence (count I), willful and wanton misconduct (count II), wrongful death (count III), survival action (count IV), and public nuisance (count V), all of which were predicated on defendants\u2019 alleged breach of their duty to provide fire protection to plaintiffs. On defendants\u2019 motion, the trial court dismissed the city of Chicago, Jane Byrne, Richard Brzeczek, and the police officers from the action on the grounds that plaintiffs had failed to timely file both the statutory notice of claim and the complaint. The remaining defendants then moved to strike and dismiss the complaint on the grounds that plaintiffs\u2019 allegations failed to show that defendants had any duty to provide fire protection to plaintiffs, and that sections 5 \u2014 101 and 5 \u2014 102 of the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (Ill. Rev. Stat. 1985, ch. 85, par. 1\u2014 101 et seq.) affirmatively preclude imposition of such a duty. In addition, defendants argued that plaintiffs had failed to timely file both the statutory notice of claim and the complaint.\nIn granting defendants\u2019 motion to dismiss, the trial court focused solely on what it found to be the two-fold \u201cthreshold issue\u201d: (1) whether fire fighters have a common law duty to the plaintiffs that is negated by the General Assembly\u2019s passage of sections 5 \u2014 101 and 5\u2014 102 of the Tort Immunity Act, except under circumstances where a \u201cspecial duty\u201d exists; or (2) whether sections 5 \u2014 101 and 5 \u2014 102 are simply legislative restatements of the absence of a common law duty between a fire fighter and a specific plaintiff. The trial court found that regardless of whether sections 5 \u2014 101 and 5 \u2014 102 are statutory restatements of the absence of a duty owed by fire fighters, or whether the sections act to negate a common law duty (in the absence of a showing of special duty) by fire fighters, dismissal of the cause of action was required on the grounds that \u201cno common law duty exists under the facts alleged in the complaint.\u201d In addition, the trial court found that plaintiffs had failed to sufficiently allege the existence of a special duty between defendants and plaintiffs.\nOn appeal, plaintiffs contend that the trial court erred in dismissing their complaint because: (1) defendants were not municipal employees acting within the scope of their employment at the time of the fire at the Ridgeway premises and, thus, are not entitled to the protections of sections 5 \u2014 101 and 5 \u2014 102 of the Tort Immunity Act; and (2) in the alternative', the special duty exception had been properly alleged in the complaint. For the following reasons, we affirm the judgment of the circuit court.\nIn support of their contention that the court erred in dismissing their complaint, plaintiffs initially argue that defendants\u2019 participation in an illegal strike at the time of the fire at the Ridgeway premises triggered two exceptions to the Tort Immunity Act, thereby precluding application of the Act\u2019s protections to them. First, plaintiffs contend that defendant fire fighters were not acting within the scope of their employment while they were on strike. Therefore, because section 2 \u2014 204 of the Tort Immunity Act limits coverage of the Act to public employees who are acting within the scope of their employment, the fire fighters were not covered and are liable for their failure to provide fire protection. Second, plaintiffs argue that pursuant to section 2 \u2014 202 of the Act, which denies immunity for acts or omissions which constitute willful and wanton negligence, defendants are liable for the intentional violation of the court order which enjoined the strike and for their refusal to tend to the fire at the Ridgeway premises.\nIn our view, plaintiffs\u2019 scope of employment argument is fundamentally incongruous. Assuming arguendo that defendant fire fighters were not acting within the scope of their employment at the time they failed to tend to the fire at the Ridgeway premises, then they must have been acting as private citizens. In the latter capacity, defendants were under no duty to provide fire protection. In support of their position, plaintiffs rely on Bauer v. City of Chicago (1985), 137 Ill. App. 3d 228, 484 N.E.2d 422. However, we find that Bauer more accurately supports a finding of no duty. In Bauer, a suspended Chicago police officer was involved in a shooting. The city of Chicago refused to represent the officer on the ground that he had not been acting within the scope of his authority at the time of the shooting. The trial court granted summary judgment in the city\u2019s favor. On appeal, the Bauer court held that, \u201cas a matter of law, *** a suspended police officer cannot be acting within the scope of his employment, even if that officer is engaged in direct police action. ***. A suspended officer has only the same rights and obligations in preventing and stopping the commission of crime as any private citizen.\u201d 137 Ill. App. 3d 228, 233, 484 N.E.2d 422.\nAlthough'we make no determination as to whether the employment status of a suspended police officer is analogous to that of a striking fire fighter, Bauer indicates that once a determination is made that a public employee was not acting within the scope of his employment, that public employee\u2019s duty to others is that of any other private citizen. Thus, in the present case, whether defendants were protected by the Tort Immunity Act or whether they acted outside of the scope of their employment as private citizens, we find that they had no legal duty to offer fire protection to plaintiffs.\nWe next address plaintiffs\u2019 contention that defendants\u2019 intentional violation of the court\u2019s injunction and their refusal to tend the fire at the Ridgeway premises constituted willful and wanton negligence which, pursuant to section 2 \u2014 202, is not protected by the Tort Immunity Act. We disagree and find Jamison v. City of Chicago (1977), 48 Ill. App. 3d 567, 363 N.E.2d 87, and Nieder v. Gacy (1984), 121 Ill. App. 3d 854, 460 N.E.2d 342, determinative of the issue. As a preliminary note, in reaching this conclusion, we make no determination as to whether defendants\u2019 conduct did constitute willful and wanton negligence. Rather, we address only the issue as to whether section 2 \u2014 202, a general provision, provides an exception to the liability protections of article V of the Tort Immunity Act, which specifically addresses and is limited to fire protection.\nIn Jamison, James O\u2019Malley shot and killed John Jamison. For three days prior to the shooting, O\u2019Malley\u2019s son had warned the Chicago police that his father had been acting in a violent manner and requested that the police arrest him. The police refused to do so and the shooting occurred. Plaintiff, administratrix of Jamison\u2019s estate, filed a wrongful death action against the city of Chicago and the individual police officers, alleging, inter alia, that the individual officers were guilty of willful and wanton negligence in refusing to arrest O\u2019Malley.\nIn response, defendants moved to dismiss the complaint pursuant to section 4 \u2014 102 of the Tort Immunity Act, which specifically provides immunity to police personnel for failure to prevent the commission of crimes. The motion was denied and the question was certified for appeal. The appellate court declined to address the Tort Immunity Act issue and reversed the trial court on the grounds that plaintiff\u2019s complaint had failed to sufficiently allege willful and wanton negligence. Plaintiff amended the complaint and defendants again moved to strike and dismiss the complaint on the basis of the Tort Immunity Act. Once again, the motion was denied and the question was certified for appeal.\nOn appeal, the Jamison court addressed the issue of whether section 2 \u2014 202, a general provision of the Tort Immunity Act, overrides the more specific immunity sections of article IV of the Act, entitled \u201cPolice and Correctional Activities.\u201d Section 2 \u2014 202 states:\n\u201cA public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton negligence.\u201d\nArticle IV of the Tort Immunity Act pertains specifically to public employees engaged in the functions of enforcing the law and making arrests. In particular, sections 4 \u2014 102 and 4 \u2014 107 provide immunity for, inter alia, the failure to prevent the commission of crimes, the failure to apprehend criminals, and the failure to make an arrest.\nRecognizing that section 2 \u2014 202 is broader than sections 4 \u2014 102 and 4 \u2014 107, the Jamison court held that there was no conflict between section 2 \u2014 202 and section 4 \u2014 107 and that \u201csection 4 \u2014 107 provides blanket immunity in the area of police discretion over arrests\u201d (Jamison v. City of Chicago (1977), 48 Ill. App. 3d 567, 569, 363 N.E.2d 87), including immunity for willful and wanton misconduct. Seven years later, Jamison was found dispositive of an identical issue raised in Nieder v. Gacy (1984), 121 Ill. App. 3d 854, 460 N.E.2d 342.\nIn our view, the issue rased in Jamison is analogous to the section 2 \u2014 202 question raised by plaintiffs in the present case. Just as article IV of the Tort Immunity Act specifically provides immunity to police personnel, article V of the Act specifically provides immunity to fire fighters for the \u201cfailure to establish a fire department or *** to provide fire protection service\u201d (Ill. Rev. Stat. 1985, ch. 85, par. 5\u2014 101); \u201cfor an injury resulting from the failure to suppress or contain a fire or from the failure to provide or to maintain sufficient personnel, equipment or other fire protection facilities\u201d (Ill. Rev. Stat. 1985, ch. 84, par. 5 \u2014 102); \u201cfor an injury resulting from the condition of fire protection or fire fighting equipment or facilities,\u201d or \u201cfor an injury caused by an act or omission of a public employee while engaged in fighting a fire\u201d (Ill. Rev. Stat. 1985, ch. 85, par. 5 \u2014 103); and for damage to bridges or roads caused by fire fighting equipment responding to or returning from an alarm (Ill. Rev. Stat. 1985, ch. 85, par. 5\u2014 104). Accordingly, we find that article V of the Tort Immunity Act is intended to provide blanket immunity in the specific area of fire protection and is not subject to the exception set forth in section 2 \u2014 202. In reaching this decision, we find the Jamison court\u2019s conclusion that blanket immunity for police is necessary to protect municipalities from \u201climitless liabilities\u201d (Jamison v. City of Chicago (1977), 48 Ill. App. 3d 567, 570, 363, N.E.2d 87) equally applicable to fire fighters.\nNext, plaintiffs contend that the trial court erred in finding that their complaint had failed to sufficiently allege the \u201cspecial duty\u201d exception to immunity for public employees. The four requisite elements to the \u201cspecial duty\u201d exception, whereby a public employee owes a special duty to an individual, rather than merely to the public at large, are:. (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 willful in nature; and (4) the injury must occur while plaintiff is under the direct and immediate control of employees or agents of the municipality. (Galuszynski v. City of Chicago (1985), 131 Ill. App. 3d 505, 475 N.E.2d 960.) All four elements must be alleged. In response to plaintiffs\u2019 contention that they had alleged facts sufficient to satisfy all four elements, defendants address only the element regarding direct and immediate control, asserting that: (1) the location of a fire station across the street from the Ridgeway premises did not put plaintiffs in defendants\u2019 special care; and (2) even if the fire fighters had been aware of the fire at the Ridgeway premises, actual knowledge of the fire does not satisfy the element of control. We agree with defendants\u2019 position and, thus, will confine our discussion to the element of direct and immediate control.\nThis court has addressed the issue of what constitutes direct and immediate control in Gardner v. Village of Chicago Ridge (1966), 71 Ill. App. 2d 373, 219 N.E.2d 147, Marvin v. Chicago Transit Authority (1983), 113 Ill. App. 3d 172, 446 N.E.2d 1183, and Galuszynski v. City of Chicago (1985), 131 Ill. App. 3d 505, 475 N.E.2d 960. In Gardner, the plaintiff was attacked, in the presence of police officers by four persons whom plaintiff had identified as his assailants. The attack occurred when, at the request of the police officers, plaintiff accompanied them to a specific location in order to view several suspects. The appellate court reversed the dismissal of plaintiff\u2019s complaint on the ground that he had been \u201ccalled into a position of peril by the police.\u201d Gardner v. Village of Chicago Ridge (1966), 71 Ill. App. 2d 373, 380, 219 N.E.2d 1470.\nIn Marvin, plaintiff was attacked by six youths near the cashiers\u2019 window of a subway station. A police officer chased the youths away from the window and told them to go downstairs to the platform. When the plaintiff asked the officer to accompany him downstairs to the platform, the officer refused, explaining that the youths were going in a different direction and would be on a different platform. However, when plaintiff walked down the stairs to the platform, the youths were waiting and attacked him. During the attack, the officer was upstairs talking to the ticket agent. The appellate court affirmed the dismissal of plaintiff\u2019s complaint against the city of Chicago on the ground that the allegation that the officer had \u201cdirected, permitted or caused\u201d plaintiff to descend to the platform was insufficient to allege direct and immediate control.\nIn Galuszynski, plaintiffs sought recovery for injuries incurred when burglars entered their home and attacked them. Plaintiffs had placed a call to the police department through the 911 emergency telephone system to report the presence of intruders attempting to break into their home. By the time police officers arrived 24 minutes later, the intruders had entered plaintiffs\u2019 home, had attacked them and had stolen personal property. Plaintiffs filed a personal injury action against the city of Chicago, alleging \u201cthat the city represented to the public that the purpose of the 911 emergency system was to serve as a means of contacting the police in emergency situations requiring immediate police response; that plaintiffs called the police department through the 911 system, reported a burglary in progress and were told to \u2018watch for the police\u2019; and that the city \u2018carelessly and negligently\u2019 and \u2018wilfully and wantonly\u2019 failed to dispatch police officers to plaintiffs\u2019 home for 24 minutes, thereby allowing intruders to complete their forced entry of plaintiffs\u2019 home and cause injury to plaintiffs.\u201d Galuszynski v. City of Chicaqo (1985), 131 Ill. App. 3d 505, 507, 475 N.E.2d 960.\nOn appeal, the reviewing court found that the first three requirements of the special duty exception had been met, but that plaintiffs had failed to allege sufficient allegations to lead to the conclusion that plaintiffs were under the direct and immediate control of the police. In reaching its decision, the court distinguished the situation where the police created the position of peril (Gardner v. Village of Chicago Ridge (1966), 71 Ill. App. 2d 373, 219 N.E.2d 147), and one where the plaintiff sought police protection which was not provided. (Marvin v. Chicago Transit Authority (1983), 113 Ill. App. 3d 172, 446 N.E.2d 1183.) In the former, direct control was found to exist. In the latter, it was not. The Galuszynski court found that the situation before it resembled that in Marvin, where the plaintiff sought police protection which was not provided.\nIn the present case, contrary to plaintiffs\u2019 assertion, we find that both Marvin and Galuszynski indicate that a public employee\u2019s actual knowledge of another\u2019s need for protection is not determinative of a finding of direct and immediate control. Rather, the pivotal fact is whether the police officer or the fire fighter was responsible for the occurrence which gave rise to the need for protection. Clearly, the defendants at bar were not responsible for the fire to the Ridgeway premises. Instead, similar to the situations in Galuszynski and Marvin, plaintiffs at bar merely sought protection which was not provided. Accordingly, we agree with the trial court that plaintiffs\u2019 complaint did not sufficiently allege the special duty exception.\nFor the aforementioned reasons, we affirm the judgment of the circuit court.\nAffirmed.\nO\u2019CONNOR and MANNING, JJ., concur.\nPlaintiffs do not appeal the dismissal of defendants city of Chicago, Jane Byrne, Richard Brzeczek, and the police officers.", "type": "majority", "author": "JUSTICE CAMPBELL" } ], "attorneys": [ "Melanie Grabavoy, of Chicago, for appellants.", "Jacobs, Burns, Sugarman & Orlove, of Chicago (Robert S. Sugarman and Nancy E. Tripp, of counsel), for appellees." ], "corrections": "", "head_matter": "VALERIA JACKSON et al., Plaintiffs-Appellants, v. CHICAGO FIREFIGHTERS UNION, LOCAL NO. 2, et al., Defendants-Appellees (Jane Byrne, Indiv., et al., Defendants).\nFirst District (1st Division)\nNo. 85\u20142954\nOpinion filed September 8, 1987.\nMelanie Grabavoy, of Chicago, for appellants.\nJacobs, Burns, Sugarman & Orlove, of Chicago (Robert S. Sugarman and Nancy E. Tripp, of counsel), for appellees." }, "file_name": "0975-01", "first_page_order": 997, "last_page_order": 1004 }