{ "id": 2637388, "name": "RAYMOND C. TREPACHKO, Special Adm'r of the Estate of Carla Trepachko, Deceased, Plaintiff-Appellant, v. THE VILLAGE OF WESTHAVEN, et al., Defendants-Appellees; BRUNO PIETRUSZYNSKI, Adm'r of the Estate of Richard Pietruszynski, Deceased, Plaintiff-Appellant, v. THE VILLAGE OF WESTHAVEN et al., Defendants-Appellees", "name_abbreviation": "Trepachko v. Village of Westhaven", "decision_date": "1989-02-23", "docket_number": "Nos. 1\u201487\u20141324, 1\u201487\u20141440 cons.", "first_page": "241", "last_page": "252", "citations": [ { "type": "official", "cite": "184 Ill. App. 3d 241" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "323 N.E.2d 118", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "25 Ill. App. 3d 326", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2702167 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/25/0326-01" ] }, { "cite": "501 N.E.2d 995", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "150 Ill. App. 3d 288", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3502823 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-app-3d/150/0288-01" ] }, { "cite": "436 N.E.2d 623", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "106 Ill. App. 3d 1066", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3032225 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/106/1066-01" ] }, { "cite": "474 N.E.2d 13", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "490 N.E.2d 88", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "141 Ill. App. 3d 351", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3496666 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/141/0351-01" ] }, { "cite": "507 N.E.2d 64", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "154 Ill. App. 3d 498", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3648192 ], "weight": 2, "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/154/0498-01" ] }, { "cite": "22 N.E.2d 930", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "372 Ill. 124", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2527954 ], "opinion_index": 0, "case_paths": [ "/ill/372/0124-01" ] }, { "cite": "84 N.E.2d 435", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1939, "opinion_index": 0 }, { "cite": "402 Ill. 486", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2618043 ], "year": 1939, "opinion_index": 0, "case_paths": [ "/ill/402/0486-01" ] }, { "cite": "502 N.E.2d 1243", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "151 Ill. App. 3d 758", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3540477 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/151/0758-01" ] }, { "cite": "474 N.E.2d 1274", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "130 Ill. App. 3d 740", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3493808 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/130/0740-01" ] }, { "cite": "492 N.E.2d 1292", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1985, "opinion_index": 0 }, { "cite": "112 Ill. 2d 211", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5538322 ], "weight": 3, "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-2d/112/0211-01" ] }, { "cite": "410 N.E.2d 610", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "88 Ill. App. 3d 443", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3173475 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/88/0443-01" ] }, { "cite": "282 N.E.2d 144", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "52 Ill. 2d 27", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5395825 ], "opinion_index": 0, "case_paths": [ "/ill-2d/52/0027-01" ] }, { "cite": "457 N.E.2d 1153", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "364 N.E.2d 423", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "49 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5637117 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/49/0001-01" ] }, { "cite": "517 N.E.2d 17", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "163 Ill. App. 3d 725", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3547937 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/163/0725-01" ] }, { "cite": "517 N.E.2d 656", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1987, "opinion_index": 0 }, { "cite": "164 Ill. App. 3d 213", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3582086 ], "weight": 2, "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/0213-01" ] }, { "cite": "243 N.E.2d 214", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "41 Ill. 2d 361", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853150 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-2d/41/0361-01" ] }, { "cite": "467 N.E.2d 1153", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "opinion_index": 0 }, { "cite": "126 Ill. App. 3d 1059", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3598443 ], "weight": 5, "pin_cites": [ { "page": "1065" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/1059-01" ] }, { "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, "opinion_index": 0, "case_paths": [ "/ill-app-3d/131/0505-01" ] }, { "cite": "514 N.E.2d 515", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1985, "opinion_index": 0 }, { "cite": "161 Ill. App. 3d 290", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3468320 ], "weight": 3, "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/161/0290-01" ] }, { "cite": "446 N.E.2d 1183", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "113 Ill. App. 3d 172", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3626612 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/113/0172-01" ] }, { "cite": "415 N.E.2d 1015", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "83 Ill. 2d 462", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5473261 ], "opinion_index": 0, "case_paths": [ "/ill-2d/83/0462-01" ] }, { "cite": "466 N.E.2d 1183", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "113 Ill. App. 2d 172", "category": "reporters:state", "reporter": "Ill. App. 2d", "opinion_index": 1 }, { "cite": "159 N.E.2d 496", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 1 }, { "cite": "22 Ill. App. 2d 48", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5202276 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ill-app-2d/22/0048-01" ] }, { "cite": "246 N.E.2d 100", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1959, "opinion_index": 1 }, { "cite": "107 Ill. App. 2d 195", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1596859 ], "weight": 2, "year": 1959, "opinion_index": 1, "case_paths": [ "/ill-app-2d/107/0195-01" ] }, { "cite": "226 N.E.2d 597", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "opinion_index": 1 }, { "cite": "37 Ill. 2d 309", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2864654 ], "year": 1969, "opinion_index": 1, "case_paths": [ "/ill-2d/37/0309-01" ] }, { "cite": "364 N.E.2d 423", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "427" } ], "opinion_index": 1 }, { "cite": "49 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5637117 ], "weight": 2, "pin_cites": [ { "page": "6" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/49/0001-01" ] }, { "cite": "243 N.E.2d 214", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1987, "opinion_index": 1 }, { "cite": "41 Ill. 2d 361", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853150 ], "weight": 2, "year": 1987, "opinion_index": 1, "case_paths": [ "/ill-2d/41/0361-01" ] }, { "cite": "446 N.E.2d 1183", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "113 Ill. App. 3d 172", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3626612 ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/113/0172-01" ] } ], "analysis": { "cardinality": 1045, "char_count": 28019, "ocr_confidence": 0.781, "pagerank": { "raw": 1.9150540693697626e-07, "percentile": 0.732208132597692 }, "sha256": "5229802866ff4c895a1d36b2a86ef32982d6ebcffa088c2c1e84424e36e29501", "simhash": "1:3265ec0d43c7a4ce", "word_count": 4570 }, "last_updated": "2023-07-14T17:19:22.278456+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "RAYMOND C. TREPACHKO, Special Adm\u2019r of the Estate of Carla Trepachko, Deceased, Plaintiff-Appellant, v. THE VILLAGE OF WEST-HAVEN, et al., Defendants-Appellees. \u2014 BRUNO PIETRUSZYNSKI, Adm\u2019r of the Estate of Richard Pietruszynski, Deceased, Plaintiff-Appellant, v. THE VILLAGE OF WESTHAVEN et al., Defendants-Appellees." ], "opinions": [ { "text": "JUSTICE McMORROW\ndelivered the opinion of the court:\nThis is a consolidated appeal from the dismissal of plaintiffs\u2019 third-amended complaints in a personal injury and wrongful death action.\nBackground\nPlaintiffs, Raymond Trepachko and Bruno Pietruszynski, administrators of the estates of Carla Trepachko and Richard Pietruszynski (decedents), respectively, filed separate complaints against defendants, the Village of Westhaven (Village), Westhaven police officer Harry Callahan (Callahan), and Jerome Ranos (Ranos), seeking recovery for the fatal injuries suffered by Carla and Richard when the motorcycle on which they were riding collided with Ranos\u2019 automobile on LaGrange Road in Westhaven.\nThe facts, as alleged in both plaintiffs\u2019 third-amended complaints and admitted by defendants by reason of their motions to dismiss (see O\u2019Brien v. Township High School District 214 (1980), 83 Ill. 2d 462, 415 N.E.2d 1015), are as follows. At approximately 1 a.m. on August 12, 1984, Ranos, who had been driving northbound on La-Grange Road, was stopped by Officer Callahan for a traffic law violation. Ranos stopped his car in the right curb lane, and Officer Callahan positioned his- vehicle directly behind Ranos\u2019 automobile. Callahan focused his spotlight on the driver\u2019s area of the Ranos car and instructed Ranos to move the car from the lane in which it was parked to the median which divided the northbound lanes from the southbound lanes in the four-lane highway. Ranos drove his car in a westerly direction across the highway toward the median in such a way that it was proceeding almost perpendicularly across the two north-bound lanes. While Ranos moved his car across the highway, Officer Callahan continued to shine his spotlight toward Ranos\u2019 rear-view mirror. As the Ranos car proceeded across the highway, the motorcycle on which the decedents were riding collided with it, causing them the severe injuries from which they subsequently died.\nThe Trepachko complaint alleged that Callahan was negligent in the following respects: directing Ranos to drive his car across two lanes of travel; failing to keep a proper lookout for or take measures to control oncoming traffic; and focusing his spotlight in Ranos\u2019 rear view mirror in such a way as to make it difficult or impossible for Ranos to see any traffic approaching from the south. The Pietruszynski complaint alleged these same acts and omissions, and also alleged that Officer Callahan\u2019s failure to warn oncoming cars of the maneuver Ranos was performing at Callahan\u2019s direction constituted both negligent and wilful and wanton conduct.\nDefendants filed motions to strike and dismiss the complaints, asserting that they owed no duty to protect the decedents from Ranos; that Callahan\u2019s conduct was not the proximate cause of the decedents\u2019 injuries; and that they were immune from liability under sections 2 \u2014 202 and 2 \u2014 109 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, pars. 2 \u2014 202, 2 \u2014 109) (the Tort Immunity Act)).\nFollowing a hearing, the trial court granted the motions to dismiss. The court found that plaintiffs had failed to plead or establish the existence of a special relationship between defendants and the decedents giving rise to a duty on the part of defendants to the decedents. The court then held, as a matter of law, that absent any such duty, plaintiffs\u2019 complaints failed to state a cause of action. The action against Ranos remained pending and is not the subject of this appeal. This appeal from the dismissal of the complaints against the Village and Callahan followed.\nWe affirm, finding that plaintiffs\u2019 complaints do not allege facts which meet the requirements of the \u201cspecial duty\u201d exception to the general rule of immunity of municipalities and police officers for acts of ordinary negligence; and that by reason of defendants\u2019 immunity from liability, dismissal was proper.\nOpinion\nPlaintiffs contend that their complaints were erroneously dismissed because the trial court \u201cfundamentally misunderstood\u201d their theory of recovery. Plaintiffs argue that the trial court erred when it \u201cfailed to recognize that the duty to provide police protection to the general public is a completely separate and distinct duty than is the duty to exercise ordinary care to guard against the consequences of one\u2019s own negligent conduct.\u201d\nIt is well established in Illinois that, generally, municipalities are not liable for the failure to provide police protection. (Marvin v. Chicago Transit Authority (1983), 113 Ill. App. 3d 172, 446 N.E.2d 1183.) The rationale behind this rule is that a police department\u2019s duty to preserve the well-being of the community and protect its citizenry is a duty which is owed to the public at large, rather than specific individuals. (Fessler v. R.E.J. Inc. (1987), 161 Ill. App. 3d 290, 514 N.E.2d 515; Galuszynski v. City of Chicago (1985), 131 Ill. App. 3d 505, 475 N.E.2d 960.) The rule is based upon strong public policy considerations. If a municipality\u2019s duty to provide police protection extended to individuals, rather than to the public at large, police departments may be placed in the untenable position of guaranteeing the personal safety of each individual in the community. The general rule which confers immunity upon municipalities and their agents for failure to provide adequate police protection was codified in section 4 \u2014 102 of the Tort Immunity Act, which provides, \u201c[njeither a public entity nor a public employee is liable for *** failure to *** provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service.\u201d Ill. Rev. Stat. 1985, ch. 85, par. 4 \u2014 102.\nAn exception to the general rule has been created where the police have assumed a special duty to a person \u201cthat elevates his status to something more than a member of the general public.\u201d (Long v. Soderquist (1984), 126 Ill. App. 3d 1059, 1065, 467 N.E.2d 1153.) This \u201cspecial duty\u201d exception to the general immunity of municipalities arises only where four criteria are met: (1) the police are uniquely aware of the particular danger or risk to which the plaintiff is exposed; (2) there are allegations of specific acts or omissions on the part of the police; (3) those acts or omissions are either affirmative or wilful in nature; and (4) the injury occurs while the plaintiff is under the direct and immediate control of the police. Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 243 N.E.2d 214; Kavanaugh v. Midwest Club, Inc. (1987), 164 Ill. App. 3d 213, 517 N.E.2d 656; Rush v. City of Chicago (1987), 163 Ill. App. 3d 725, 517 N.E.2d 17; Fessler v. R.E.J. Inc. (1987), 161 Ill. App. 3d 290, 514 N.E.2d 515; Galuszynski v. City of Chicago (1985), 131 Ill. App. 3d 505, 475 N.E.2d 960; Long v. Soderquist (1984), 126 Ill. App. 3d 1059, 467 N.E.2d 1153.\nPlaintiffs maintain, however, that the instant case is not a \u201cpolice protection case\u201d based on Officer Callahan\u2019s failure to protect the decedents from the negligent acts of a third party, i.e., Ranos. Rather, they argue, theirs is an action in simple negligence based on Officer Callahan\u2019s negligent breach of every citizen\u2019s duty to exercise ordinary care for the safety of others. Plaintiffs argue that their complaints adequately allege that at the time of the occurrence, Officer Callahan was acting in the performance of his duties as a police officer of the Village; that he owed a duty to exercise ordinary care for the safety of the decedents in carrying out those responsibilities (Brooks v. Lundeen (1977), 49 Ill. App. 3d 1, 364 N.E.2d 423); that he breached that duty by the various affirmative, negligent acts enumerated in the complaints; and that these acts created the hazardous condition which proximately caused the decedents\u2019 injuries and subsequent deaths. In the alternative, they argue that, assuming the trial court was correct in assessing the sufficiency of the complaints under a \u201cspecial duty\u201d analysis, the facts alleged in the complaints met the four criteria within the exception to the general immunity of a municipality.\nPlaintiffs characterize the allegations of negligence in their complaints as \u201caffirmative acts\u201d on the part of Officer Callahan. A substantive analysis of the complaints, however, supports the trial court\u2019s conclusion that the facts alleged constitute allegations of the failure of a police officer to adequately protect members of the general public in the exercise of the officer\u2019s duties relating to traffic control. Specifically, the complaints allege, inter alia, that Officer Callahan: \u201cfailed to properly direct and control Ranos; failed to take measures to adequately control oncoming traffic *** moving at a speed of 55 miles per hour; failed to take any measures to protect oncoming traffic *** moving at a speed of 55 miles per hour; failed to keep proper and sufficient lookout for oncoming traffic *** moving at 55 miles per hour; and failed to warn any oncoming traffic of the lane usage that was being effected at their order, direction and control.\u201d (Emphasis added.) These allegations expressly or implicity charge Officer Callahan with failing to perform various acts and take certain precautions to protect the safety of \u201concoming traffic.\u201d In the context of the complaints before us, the term \u201concoming traffic\u201d refers specifically to the decedents. The gist of the complaint, then, is that Officer Callahan failed to take measures to protect the safety of the decedents. The only \u201caffirmative act\u201d alleged in the complaints was that Officer Callahan focused his spotlight toward the rearview mirror of Ranos\u2019 vehicle as it crossed the highway. We do not believe that this single factual allegation, or the conclusion drawn from it in the complaints, i.e., that Callahan knew \u201cthat the spotlight would make it difficult or impossible for Ranos to look to the south for any oncoming traffic,\u201d changes the essential nature of the action as one alleging that Officer Callahan improperly performed the traffic stop of Ranos without due regard for the safety of the decedents.\nPlaintiffs\u2019 insistence that this is not a \u201cpolice protection\u201d case is refuted by the substance of their allegations and is based on an overly narrow interpretation of the concept of \u201cpolice protection.\u201d We therefore find no \u201cmisinterpretation\u201d by the trial court in its determination that plaintiffs\u2019 complaints attempted to state a cause of action against defendants for Callahan\u2019s failure to perform his police duties in a manner protective of the decedents\u2019 safety. As stated, liability for such a failure requires, in the first instance, a showing that defendants owed a special duty to the decedents. Cf. Long v. Soderquist (1984), 126 Ill. App. 3d 1059, 457 N.E.2d 1153 (allegations that a deputy sheriff negligently failed to direct motorists at the scene of an accident to remove their vehicles from the highway, to light flares or to warn oncoming motorists of the presence of those vehicles on the roadway required a showing that the county defendants owed plaintiffs a special duty to provide adequate police protection or service).\nPlaintiffs argue and we agree, as a general proposition, that police officers, like all other citizens, have the duty to exercise ordinary care with respect to their conduct toward others. The existence of this duty was implicitly recognized by the supreme court in Arnolt v. City of Highland Park (1972), 52 Ill. 2d 27, 282 N.E.2d 144, in its analysis of the scope of immunity afforded public employees and municipalities under sections 2 \u2014 109 and 2 \u2014 202 of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, pars. 2 \u2014 109, 2 \u2014 202), which we discuss later in this opinion. In Arnolt, the court rejected the argument that immunity is afforded for every act or omission by public employees during their hours of duty. The court stated, by way of example, that a police officer may be found liable for injuries or damages resulting from his negligence while merely cruising on routine patrol.\nHowever, plaintiffs have not cited nor have we found any cases espousing the proposition they proffer \u2014 which is, in essence, the opposite of the argument made in Arnolt \u2014 that a police officer \u201cis not rendered immune from liability [for injuries to individuals resulting from acts of ordinary negligence] simply because he was acting in the performance of his duties at the time of the accident.\u201d Indeed, there is a continually growing line of jurisprudence finding that police officers are immunized from liability for acts of ordinary negligence committed when they are providing police services (e.g., Long v. Soderquist (1984), 126 Ill. App. 3d 1059, 467 N.E.2d 1153; Porter v. City of Urbana (1980), 88 Ill. App. 3d 443, 410 N.E.2d 610) or executing, enforcing or implementing any law (e.g., Fitzpatrick v. City of Chicago (1986), 112 Ill. 2d 211, 492 N.E.2d 1292; Morris v. City of Chicago (1985), 130 Ill. App. 3d 740, 474 N.E.2d 1274).\nPlaintiffs\u2019 reliance on Brooks v. Lundeen (1977), 49 Ill. App. 3d 1, 364 N.E.2d 423, as support for the proposition that a police officer \u201cis liable for any injury caused by his own ordinary negligence\u201d is misplaced. In Brooks, the decedent came upon the scene of a roadblock set up to apprehend Lundeen and was instructed by the police officers to park his car on the shoulder of the road. Brooks was killed when Lundeen\u2019s car, travelling at approximately 90 miles per hour, veered around the squad car and collided head on with his vehicle. The jury verdict entered for plaintiff was upheld on appeal. The Brooks court based its decision upon the existence of an affirmative duty to warn which it found to arise out of the special relationship created when the police initiated control over Brooks by directing him, without explanation, to park his vehicle within the roadblock area. The court held that by detaining Brooks at the scene, the police affirmatively assumed a duty to him to warn him of the danger known to them or to direct him to a safe position. Since Brooks involved a special relationship between the police and the decedent, we do not find it to be supportive of the theory propounded by plaintiffs in this case. Neither, however, do we find Brooks to be inconsistent with the authorities we have cited holding that absent a special relationship with the injured person, police are generally immune from liability for acts of ordinary negligence while in the active performance of police functions.\nWe turn then to plaintiffs\u2019 assertion that the existence of such a duty, though not expressly pleaded, is nevertheless inferentially established by the facts alleged in the complaints. As stated earlier, the special duty exception applies only where all four of its requirements are met. Here, even assuming, in lieu of an exhaustive analysis, that plaintiffs\u2019 complaints contain some facts which may arguably satisfy the first three requirements, the absence of any allegations stating, or from which it reasonably could be inferred, that the decedents were under the direct and immediate control of Officer Callahan when their motorcycle struck Ranos\u2019 vehicle renders the exception inapplicable to the situation before us. (See, e.g., Long v. Soderquist (1984), 126 Ill. App. 3d 1059, 467 N.E.2d 1153 (motorists injured when their automobile collided with another vehicle at the scene of a prior accident scene were not under the direct and immediate control of the deputy sheriff also present at the accident scene so as to trigger the special duty exception).) This fourth requirement has been given a literal and strict interpretation by Illinois courts, which have consistently limited its applicability to plaintiffs or, as in this case, their decedents. (See Fessler v. R.E.J. Inc. (1987), 161 Ill. App. 3d 290, 514 N.E.2d 515; Luber v. City of Highland (1986), 151 Ill. App. 3d 758, 502 N.E.2d 1243; Galuszynski v. City of Chicago (1985), 131 Ill. App. 3d 505, 475 N.E.2d 960; Marvin v. Chicago Transit Authority (1983), 113 Ill. App. 3d 172, 446 N.E.2d 1183.) Whether or not Ranos, a defendant, was under the direct and immediate control of Officer Callahan, as plaintiffs extensively argue, is not relevant to a discussion of the special duty exception.\nAlthough the question of what, if any, duty was owed to the decedents was the primary focus of the hearing in the trial court, the record reveals that in their amended motions to dismiss, the defendants also asserted that they were immune from liability by reason of sections 2 \u2014 202 and 2 \u2014 109 of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, pars. 2 \u2014 202, 2 \u2014 109), which provide, respectively:\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 wilful and wanton negligence.\u201d\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\nSections 2 \u2014 202 and 2 \u2014 109 are general immunity provisions which relate to any public employee enforcing any law. These sections codify the long-standing, common-law rule that municipalities and employees or agents thereof are not liable for injuries resulting from acts of ordinary negligence by those employees-agents in the performance of governmental functions (see, e.g., Mower v. Williams (1949), 402 Ill. 486, 84 N.E.2d 435; Taylor v. City of Berwyn (1939), 372 Ill. 124, 22 N.E.2d 930). These sections are more broad than but similar to section 4 \u2014 102, which specifically confers immunity on police officers.\nThere is no dispute that the incident giving rise to this litigation occurred while Officer Callahan was executing and enforcing traffic laws. (See Fitzpatrick v. City of Chicago (1986), 112 Ill. 2d 211, 492 N.E.2d 1292.) Indeed, plaintiffs acknowledge that fact in arguing, inter alia, that \u201ca police officer engaged in a governmental function while pursuing a traffic violator is not rendered immune from liability for ordinary negligence while acting in the performance of his duties [but, rather] owes a duty to exercise ordinary care for the safety of others in carrying out his responsibilities\u201d (Trepachko brief); and that the courts in the cases cited by plaintiffs \u201crefused to distinguish a police officer enforcing the law as being immune from [such a duty] or subject to any lower standard of care\u201d (Pietruszynski brief).\nHowever, as the supreme court in Fitzpatrick held, section 2 \u2014 202 applies to officers engaged in the execution and enforcement of traffic laws and, together with section 2 \u2014 109, shields both the officer and the municipality from liability for injuries resulting from acts of ordinary negligence. Thus, in order to recover for injuries which occur during the execution or enforcement of a law by a public employee, plaintiffs must allege facts amounting to wilful and wanton negligence. See also Kavanaugh v. Midwest Club, Inc. (1987), 164 Ill. App. 3d 213, 517 N.E.2d 656; Laco v. City of Chicago (1987), 154 Ill. App. 3d 498, 507 N.E.2d 64; Breck v. Cortez (1986), 141 Ill. App. 3d 351, 490 N.E.2d 88; Morris v. City of Chicago (1985), 130 Ill. App. 3d 740, 474 N.E.2d 13.\nIn this case, the Trepachko complaint alleges only ordinary negligence by Officer Callahan while he was engaged in the enforcement of traffic laws. Consequently, even if we were to accept plaintiffs\u2019 contention that this is not a \u201cpolice protection case,\u201d defendants are immune from liability for acts of ordinary negligence by reason of sections 2 \u2014 202 and 2 \u2014 109. Absent a basis for recovery, dismissal of the complaint was proper.\nIn contrast, the Pietruszynski complaint did contain a count alleging wilful and wanton misconduct. Whether conduct amounts to wilful and wanton negligence ordinarily is a question of fact for the trier of fact. (Glover v. City of Chicago (1982), 106 Ill. App. 3d 1066, 436 N.E.2d 623.) However, it is also well settled that to withstand a motion to dismiss, a complaint must allege facts sufficient to state a cause of action, a determination of which may be made by the court as a matter of law. (Tijerina v. Evans (1986), 150 Ill. App. 3d 288, 501 N.E.2d 995; Jamison v. City of Chicago (1975), 25 Ill. App. 3d 326, 323 N.E.2d 118 (insufficient facts to establish wilful and wanton misconduct warrant dismissal of counts based thereon).) We note that the allegations in the wilful and wanton count of the Pietruszynski complaint are nothing more than repetitions of the allegations in the count sounding in ordinary negligence and are also substantively identical to the allegations of the Trepachko complaint. Moreover, in his brief and in arguments before the trial court and this court, Pietruszynski has stated that his action is one \u201csounding in simple negligence\u201d; that the \u201cconduct of the defendant must be scrutinized to determine if a general duty to refrain from acts of simple negligence [was] owed to the [decedent]\u201d; that the issue presented is whether \u201c[Officer Callahan\u2019s] own ordinary negligence proximately caused the injuries.\u201d We conclude that Pietruszynski failed to sufficiently plead facts constituting wilful and wanton misconduct, which is generally defined as \u201ca course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others\u201d (Ill. Rev. Stat., 1986 Supp., ch. 85, par. 1 \u2014 210; Loco v. City of Chicago (1987), 154 Ill. App. 3d 498, 507 N.E.2d 64).\nIn summary, we find that the trial court correctly determined that plaintiffs\u2019 complaints sought to hold defendants liable for Officer Callahan\u2019s failure to discharge his police duties in a manner providing adequate protection to decedents, and that absent a showing by plaintiffs that there was a special relationship giving rise to such a duty, their complaints had failed to state a cause of action. We are also of the opinion that based on sections 2 \u2014 202 and 2 \u2014 109 of the Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, pars. 2 \u2014 202, 2 \u2014 109), which confer general immunity to municipalities and public employees from liability for acts and omissions of ordinary negligence in the execution and enforcement of the law, dismissal of the complaints was appropriate here. See Fitzpatrick v. City of Chicago (1986), 112 Ill. 2d 211, 492 N.E.2d 1292.\nFor the reasons stated, the order of the trial court dismissing plaintiffs\u2019 third-amended complaints is affirmed.\nAffirmed.\nLINN, J., concurs.", "type": "majority", "author": "JUSTICE McMORROW" }, { "text": "PRESIDING JUSTICE JIGANTI,\ndissenting:\nTwo rules of law are implicated in this lawsuit. The first is that police officers have a duty to exercise ordinary care in carrying out their responsibilities. (Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 243 N.E.2d 214; Andrews v. City of Chicago (1967), 37 Ill. 2d 309, 226 N.E.2d 597; Sundin v. Hughes (1969), 107 Ill. App. 2d 195, 246 N.E.2d 100; Moore v. Cook (1959), 22 Ill. App. 2d 48, 159 N.E.2d 496.) The second proposition is that under the common law a municipality or its employees is not liable for failure to supply general police or fire protection. (Huey v. Town of Cicero (1968), 41 Ill. 2d 361, 243 N.E.2d 214; Marvin v. Chicago Transit Authority (1983), 113 Ill. App. 3d 172, 446 N.E.2d 1183.) This second proposition is codified in section 4 \u2014 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1985, ch. 85, par. 4 \u2014 102). (Marvin v. Chicago Transit Authority (1983), 113 Ill. App. 2d 172, 466 N.E.2d 1183.) In this appeal the defendants do not raise the Tort Immunity Act as a defense and I think the majority should not have gratuitously considered this issue.\nThe factual setting is as the majority relates it. Officer Callahan stopped Ranos for a traffic violation. Callahan focused his spotlight on the Ranos vehicle. Under the allegations of the complaint, the spotlight shining in the rearview mirror made it difficult for Ranos to see the decedent\u2019s vehicle, thereby being a cause of the deaths of the two plaintiffs. The majority concludes that the gist of the complaint is that Officer Callahan failed to take measures to protect the safety of the decedents, thereby implicating the second proposition of law stated above, that is, that a municipality is not liable for failure to provide police protection. (184 Ill. App. 3d at 246.) The difficulty with the position of the majority in my estimation is that they cite no case law to support their conclusion that the second proposition of law controls this case. On the contrary, I believe that case law opposes the position of the majority.\nIn Brooks v. Lundeen (1977), 49 Ill. App. 3d 1, 364 N.E.2d 423, the defendant municipality through its police department set up a roadblock to intercept a car driven by Lundeen. The plaintiff\u2019s decedent approached the roadblock and was directed by the police to park on the shoulder of the road. The decedent was not informed of the purpose of the roadblock. The Lundeen car collided head on with the decedent\u2019s vehicle causing his death. The appellate court stated that case law holds that a police officer acting \u201cin the performance of his duties [and] circumstances similar to those seen in this case owes a duty to exercise ordinary care for the safety of others in carrying out his responsibilities.\u201d (Brooks, 49 Ill. App. 3d at 6, 364 N.E.2d at 427.) In Sundin v. Hughes (1969), 107 Ill. App. 2d 195, 246 N.E.2d 100, a Chicago police officer was pursuing a vehicle operated by Larry Benford. The Benford vehicle struck a pedestrian named Eiermann, whose body, in turn, struck the plaintiff Sundin. The complaint charged Officer Hughes with negligence. The defendant contended that the complaint failed to allege a duty. The appellate court found that a duty had been sufficiently alleged. In Moore v. Cook (1959), 22 Ill. App. 2d 48, 159 N.E.2d 496, a police officer who was engaged in a chase struck the plaintiff\u2019s automobile. The court, in affirming the recovery of a judgment by the plaintiff, explained that a police officer is answerable to private persons resulting from the negligent performance of the officer\u2019s ministerial duties.\nEach of the cases cited above involved policemen attempting to apprehend offenders. And each of these cases was analyzed under the proposition of law which requires officers to exercise ordinary care when carrying out their responsibilities. I fail to see any distinction between these cases and the instant case, where the police officer apprehended an alleged traffic violator.\nYet all of these cases would seemingly be overruled by the holding of the majority, since the majority finds that the gist of the instant complaint is that the officer failed to take measures to protect the safety of the decedents, which could equally be said about each of the above cases. To read the complaint as alleging that the police are charged with failure to provide police protection is indeed strained. The holding of the majority would dramatically constrict the responsibility of municipalities and call into question a significant body of case law.\nI would reverse the judgment of the trial court.", "type": "dissent", "author": "PRESIDING JUSTICE JIGANTI," } ], "attorneys": [ "Walsh, Neville, Pappas & Mahoney and Corboy & Demetrio, P.C., both of Chicago (Anne B. Kokoris, Philip H. Corboy, Thomas A. Demetrio, Todd A. Smith, and David A. Novoselsky, of counsel), for appellants.", "Judge & Knight, Ltd., of Park Ridge (Jay S. Judge and Elizabeth A. Brown, of counsel), for appellees." ], "corrections": "", "head_matter": "RAYMOND C. TREPACHKO, Special Adm\u2019r of the Estate of Carla Trepachko, Deceased, Plaintiff-Appellant, v. THE VILLAGE OF WEST-HAVEN, et al., Defendants-Appellees. \u2014 BRUNO PIETRUSZYNSKI, Adm\u2019r of the Estate of Richard Pietruszynski, Deceased, Plaintiff-Appellant, v. THE VILLAGE OF WESTHAVEN et al., Defendants-Appellees.\nFirst District (4th Division)\nNos. 1\u201487\u20141324, 1\u201487\u20141440 cons.\nOpinion filed February 23, 1989.\n\u2014 Rehearing denied July 11, 1989.\nJIGANTI, P.J., dissenting.\nWalsh, Neville, Pappas & Mahoney and Corboy & Demetrio, P.C., both of Chicago (Anne B. Kokoris, Philip H. Corboy, Thomas A. Demetrio, Todd A. Smith, and David A. Novoselsky, of counsel), for appellants.\nJudge & Knight, Ltd., of Park Ridge (Jay S. Judge and Elizabeth A. Brown, of counsel), for appellees." }, "file_name": "0241-01", "first_page_order": 263, "last_page_order": 274 }