{ "id": 2702167, "name": "Sandra Yvonne Evans Jamison, Adm'rx, of the Estate of John Jamison, Deceased, Plaintiff-Respondent-Appellee, v. The City of Chicago et al., Defendants-Petitioners-Appellants", "name_abbreviation": "Jamison v. City of Chicago", "decision_date": "1974-12-20", "docket_number": "No. 58916", "first_page": "326", "last_page": "332", "citations": [ { "type": "official", "cite": "25 Ill. App. 3d 326" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "75 N.E.2d 864", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "398 Ill. 377", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2460894 ], "opinion_index": 0, "case_paths": [ "/ill/398/0377-01" ] }, { "cite": "285 N.E.2d 564", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "pin_cites": [ { "page": "570" } ], "opinion_index": 0 }, { "cite": "6 Ill.App.3d 516", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2468122 ], "year": 1972, "pin_cites": [ { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/6/0516-01" ] }, { "cite": "219 N.E.2d 147", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "71 Ill.App.2d 373", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2587475 ], "opinion_index": 1, "case_paths": [ "/ill-app-2d/71/0373-01" ] }, { "cite": "243 N.E.2d 214", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "41 Ill.2d 361", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853150 ], "opinion_index": 1, "case_paths": [ "/ill-2d/41/0361-01" ] }, { "cite": "166 N.E.2d 93", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 1 }, { "cite": "25 Ill.App.2d 121", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5785274 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/ill-app-2d/25/0121-01" ] }, { "cite": "240 N.E.2d 321", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "98 Ill.App.2d 460", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2647164 ], "opinion_index": 1, "case_paths": [ "/ill-app-2d/98/0460-01" ] }, { "cite": "282 N.E.2d 144", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "52 Ill.2d 27", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5395825 ], "opinion_index": 1, "case_paths": [ "/ill-2d/52/0027-01" ] } ], "analysis": { "cardinality": 768, "char_count": 16714, "ocr_confidence": 0.689, "pagerank": { "raw": 2.2392115372495042e-07, "percentile": 0.7799232696578063 }, "sha256": "f84998b90420a2dd5028b1fef560c290712aebdd9f7f35e41206992a5ed2509e", "simhash": "1:16ded01d2ec9b4b3", "word_count": 2727 }, "last_updated": "2023-07-14T15:50:56.200740+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Sandra Yvonne Evans Jamison, Adm\u2019rx, of the Estate of John Jamison, Deceased, Plaintiff-Respondent-Appellee, v. The City of Chicago et al., Defendants-Petitioners-Appellants." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE ADESKO\ndelivered the opinion of the court:\nThe plaintiff-respondent-appellee (hereinafter plaintiff) brought suit against the City of Chicago and the individual defendants, police officers of the City of Chicago, for the wrongful death of her intestate, John Jamison. The plaintiff\u2019s complaint was filed on December 11, 1972, and on January 22, 1973, the defendants-petitioners-appellants (hereinafter defendants) made a motion to strike and dismiss the complaint. The basis for the motion was section 4 \u2014 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1971, ch. 85, par. 4 \u2014 102). On March 6, 1973, after hearing counsels\u2019 arguments, the trial court denied the motion to strike and dismiss the complaint. The defendants on April 3, 1973, presented a motion to the trial court and requested the court to certify the question of the denial of the defendants\u2019 motion to strike and dismiss the complaint pursuant to Supreme Court Rule 308 (Ill. Rev. Stat. 1971, ch. 110A, par. 308). The trial court granted the motion, finding that its denial of the defendants\u2019 motion to strike and dismiss the complaint involved a question of law as to which there is a substantial ground for difference of opinion and that an immediate appeal may materially advance the ultimate termination of the litigation. The defendants filed a petition for leave to appeal and we granted the petition on May 30, 1973.\nThe plaintiff\u2019s complaint alleged that on or about January 1, 1972, plaintiff\u2019s decedent, John Jamison, was at Dunn\u2019s Pizzeria and that he was shot dead without any cause or provocation by one James O\u2019Malley. Tire complaint further alleged that on December 29, 30, and 31, 1971, defendants McCurrie, Weaver, Katalinich and \u201cUnknown Persons\u201d were guilty of willful and wanton negligence because on numerous occasions during this period the individual defendants were repeatedly requested to arrest James O\u2019Malley by one or more of O\u2019Malley\u2019s sons and other persons who complained of the highly irrational and criminal behavior of O\u2019Malley during this period, including assault and battery and assault with a deadly weapon upon one or more of O\u2019Malley\u2019s sons, and notwithstanding these requests defendants \u201cin willful and wanton disregard for their duties as law enforcement officers of the City of Chicago, and in willful and wanton disregard of their duty and obligation as such law enforcement officers to protect the safety and well-being of plaintiff\u2019s decedent, as a member of the public, did during said period willfully and wantonly decline and refuse to arrest said James O\u2019Malley, without any lawful justification whatsoever for then refusal to do so.\u201d An amendment to the complaint also alleged that prior to and at the time of the refusals to act, one or more of the individual defendants knew from prior experience of \u201cthe dangerous, violent, and law violating propensities of said James O\u2019Malley.\u201d It was alleged that the plaintiff\u2019s intestate\u2019s death was the direct and proximate result of the willful and wanton negligence of the defendants. As previously stated, the defendants\u2019 motion to strike and dismiss the plaintiff\u2019s complaint was based on section 4 \u2014 102 of the Local Governmental and Governmental Employees Tort Immunity Act. Defendants maintain that by virtue of this section of the Act neither public entities nor policemen are liable for failure to supply police protection. Plaintiff takes a contrary position and bases her contention on section 2 \u2014 202 of the Illinois Tort Immunity Act. (Ill. Rev. Stat. 1971, ch. 85, par. 2 \u2014 202.) However, due to the manner in which we view this case, it is unnecessary to deal with this issue.\nThe allegations and accusations within the plaintiff\u2019s complaint are stated in a broad and general manner. The complaint does not allege any specific acts or omissions by the defendants. During the course of oral argument, plaintiff\u2019s counsel made several factual allegations that were not contained within the complaint. Counsel stated that Daniel O\u2019Malley, one of James O\u2019Malley\u2019s sons, had pleaded several times during the 3-day period in question with the individual defendants who were policemen assigned to the 8th District to arrest his father because he was brandishing a gun, threatening blacks, and had pushed his crippled son out of a wheelchair. Plaintiff\u2019s attorney maintained that this constituted an assertion of the commission of an offense by a citizen and that the police had the power to arrest James O\u2019Malley without a warrant. While this may be true, none of these factual allegations are found in the complaint. In addition, counsel asserted that James O\u2019Malley had been committed to a State institution prior to murdering plaintiff\u2019s intestate and that the police knew this and had in fact dealt with James O\u2019Malley themselves. Counsel was questioned on this point and admitted that this was not spelled out in the complaint.\nAs was stated in Jarvis v. Herrin City Park District, 6 Ill.App.3d 516, 524, 285 N.E.2d 564, 570 (1972): \u201cIt is well settled in Illinois that, in order to withstand a motion to dismiss, a complaint must contain sufficient averments of fact to state a cause of action. (Stenwall v. Bergstrom (1947), 398 Ill. 377, 75 N.E.2d 864.)\u201d We are of the opinion that on the basis of the few facts alleged in the plaintiff\u2019s complaint there is not a sufficient allegation of willful and wanton negligence. This court is aware of the fact that pleadings should be liberally construed (Ill. Rev. Stat. 1971, ch. 110, par. 33). However, substantial averments of fact remain essential to stating a cause of action. The trial court, therefore, erred in not granting the defendants\u2019 motion to strike and dismiss the plaintiff\u2019s complaint.\nFor the reasons herein stated, the order of the Circuit Court of Cook County is reversed.\nReversed.\nDIERINGER, J., concurs.", "type": "majority", "author": "Mr. PRESIDING JUSTICE ADESKO" }, { "text": "Mr. JUSTICE BURMAN,\nspedafiy concurring:\nI agree with the judgment of my brethren, but for a different reason. I find merit in the defendants\u2019 contention that the trial court erred in failing to grant their motion to strike and dismiss the cause of action because the Illinois Local Governmental and Governmental Employees Tort Immunity Act specifically exempts defendants under the facts specified in the complaint.\nSection 4 \u2014 102 of that Act (Ill. Rev. Stat. 1971, ch. 85, par. 4 \u2014 102), under \u201cArticle IV \u2014 Police and Correctional Activities,\u201d provides:\n\u201cNeither a local public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide adequate police protection or service, failure to prevent the commission of crimes and failure to apprehend criminals.\u201d (Emphasis added.)\nIn addition, section 4 \u2014 107 of the Act (Ill. Rev. Stat. 1971, ch. 85, par. 4 \u2014 107), also under article IV, unequivocally provides:\n\u201cNeither a local public entity nor a public employee is hable for an injury caused by the failure to make an arrest or by releasing a person in custody.\u201d (Emphasis added.)\nUnder the clear import of the language of these sections, the defendants here could not be held liable for failing to effect die arrest of James O\u2019Malley.\nThe allegation of \u201cwilful and wanton negligence\u201d appearing in the plaintiff\u2019s amended complaint is derived from section 2 \u2014 202 of the same Tort Immunity Act (Ill. Rev. Stat. 1971, ch. 85, par. 2\u2014202), which sets the general standard for liability of a public employee in Illinois for acts or omissions \u201cin the execution or enforcement of any law.\u201d It provides:\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\nPlaintiff claims that the defendants alleged failure to enforce the law and effect the arrest of O\u2019Malley exposes them to liability, under section 2\u2014 202, if that failure amounts to \u201cwillful and wanton negligence,\u201d despite the mandate of section 4 \u2014 102. Plaintiff asserts that the sections \u201cmust be read together\u201d and concludes that section 2 \u2014 202 is a limitation on the immunity granted in section 4 \u2014 102. I disagree.\nSection 2 \u2014 202 comes under \u201cArticle II \u2014 General Provisions Relating to Immunity\u201d and is clearly general in nature. It generally limits the liability of any public employee for any \u201cact or omission in the execution or enforcement of any law\u201d to \u201cwillful and wanton negligence.\u201d Sections 4 \u2014 102 and 4 \u2014 107, on the other hand, appear later in the same Act under \u201cArticle IV \u2014 Police and Correctional Activities,\u201d and are specific and categorical in nature. These sections are clearly intended to relate to the function of the police, and specify certain situations where a failure to act will not result in a local public entity\u2019s or a public employee\u2019s liability. Section 4 \u2014 107 also provides immunity for the active conduct of releasing a prisoner. These specific sections are, in my opinion, meant to limit the application of section 2 \u2014 202, and are not meant to be limited by it.\nOther specific sections of the Act are intended to be construed likewise. For example, article V is concerned with \u201cFire Protection,\u201d and section 5 \u2014 102 thereunder, provides:\n\u201cNeither a local public entity that has undertaken to provide fire protection service nor any of its employees is liable for an injury resulting from the failure to suppress or contain a fire or from the failure to provide or maintain sufficient personnel, equipment or other fire protection facilities.\u201d (Ill. Rev. Stat. 1971, ch. 85, par. 5 \u2014 102.)\nThe statutory framework clearly supports the notion that the legislature intended, by subsequent specific sections in articles IV and V, such as 4 \u2014 102, 4 \u2014 107, and 5 \u2014 102, to limit the effect of section 2 \u2014 202 specifically in relation to police and fire protection. When one considers the great amount of complaints made daily by persons for protective reasons it can easily be understood why the legislature, in its wisdom, would provide the immunity to police as contained in section 4 \u2014 102 and 4\u2014 107 or otherwise municipalities would be exposed to limitless liabilities.\nBoth parties agree that probably the most extensive and comprehensive analysis of the Immunity Act is an article by David C. Baum appearing in 1966 U. Ill. L. F. 981, entitled \u201cTort Liability of Local Governments and Their Employees: An Introduction to the Illinois Immunity Act.\u201d Professor Baum\u2019s analysis supports my conclusion. In discussing whether an action based on \u201cmalice\u201d should be maintainable under section 2\u2014 201, providing general immunity for discretionary acts of public employes, he concludes in the affirmative, but then states:\n\u201cIt should be noted, however, that malicious acts will not be actionable if they fall within specific immunities granted by sections of the Immunity Act other than section 2 \u2014 201. Many of these sections are categorical in then language and appear to leave no room for exceptions, even where good faith is lacking.\u201d (1966 U.Ill. L.F. 981, 1004.)\nSections 4 \u2014 102 and 4 \u2014 107 are clearly sections granting specific immunities. If such sections preclude an action based on \u201cmalice\u201d under the general provisions of section 2 \u2014 201, as Professor Baum states, they must also do so in regard to section 2 \u2014 -202, whether the action is based on \u201cmalice\u201d or \u201cwillful and wanton negligence.\u201d\nPlaintiff contends that the construction of the Act which I adopt would \u201cnullify and sweep away\u201d section 2 \u2014 202 and render it a \u201cmeaningless nullity.\u201d This is manifestly not the case. I can certainly conceive of liability under section 2 \u2014 202 for the acts or omissions of various public employees, other than police officers, in the execution and enforcement of various laws (e.g., other than criminal laws) which is not precluded by the specific mandates of sections 4 \u2014 102 and 4 \u2014 107. And of course, as plaintiff contends, section 2 \u2014 202 might well apply to the conduct of police in certain situations not limited by article IV, e.g., shooting an innocent person while effecting the arrest of another as a result of \u201cwillful and wanton negligence.\u201d As such, it is not apparent how the construction adopted renders section 2 \u2014 202 a \u201cmeaningless nullity.\u201d In fact, it is rather difficult to perceive what purpose sections 4 \u2014 102 and 4 \u2014 107 would serve if plaintiffs construction was intended. Plaintiff appears to read these latter sections as granting immunity in certain specific circumstances relating to law enforcement, but only for ordinary negligence, whereas section 2 \u2014 202 has already provided for that same immunity in more general terms.\nThe plaintiff contends that the construction adopted is at odds with Arnolt v. City of Highland Park, 52 Ill.2d 27, 282 N.E.2d 144. That is not so. In Arnolt the complaint alleged that the plaintiff sustained injuries while riding in a car which collided with a police vehicle. No question regarding the failure of the police to prevent the commission of a crime or to effect an arrest was involved in that case, unlike in the case at bar. Thus, under the facts in Arnolt, there was no reason to consider sections 4 \u2014 102 or 4 \u2014 107, which were not raised as a defense. Furthermore, in so far as Arnolt implies that section 2 \u2014 202 is applicable to police conduct, it is not inconsistent with the construction of the Immunity Act adopted in this concurring opinion. As indicated above, I agree that section 2 \u2014 202 might well apply to police conduct, but only to the extent that such conduct is not immunized by other sections of the Immunity Act, such as sections 4 \u2014 102 and 4 \u2014 107.\nIt should finally be noted that even under case law prior to the applicability of the Tort Immunity Act, a municipality was not held liable for failing to prevent others from committing crime. (Keane v. City of Chicago, 98 Ill.App.2d 460, 240 N.E.2d 321; Adamczyk v. Zambelli, 25 Ill.App.2d 121, 166 N.E.2d 93; see also Huey v. Town of Cicero, 41 Ill.2d 361, 243 N.E.2d 214, where it was stated that independent of present statutory concepts of sovereign immunity, a municipality or its employees is generaUy not liable for failure to supply general police or fire protection. ) An exception to the general rule was recognized, however, where a special duty was owed by the police to the victim of a crime. In Gardner v. Village of Chicago Ridge, 71 Ill.App.2d 373, 219 N.E.2d 147, for example, the dismissal of a complaint was reversed. There the facts alleged were that the plaintiff was beaten by four individuals while supervising a teen club dance. The police later apprehended four suspects on the highway and held them in custody while one police officer returned to the dance hall to request the'plaintiff to accompany him and identify them. When the plaintiff arrived, the police allegedly affowed the four suspects to remain in close proximity to him. As a result, the suspects attacked him in the presence of the officers, whereby he sustained severe injuries. The appellate court stated that, although generally a municipality is not liable for failure to prevent the tortious or unlawful acts of others (citing Adamczyk v. Zambelli, 25 Ill.App.2d 121, 166 N.E.2d 93), under the alleged circumstances set out above the police owed a duty to the plaintiff to exercise reasonable care for his safety. No such duty existed in the case at bar. On this basis, however, if it were determined that the legislative intent behind sections 4 \u2014 102 and 4 \u2014 107 was to codify this previous case law, there might be justification for construing the Immunity Act differently in a situation where, unlike the situation here, the police had personally witnessed an assault and, with ample opportunity to do so, failed to protect persons threatened, resulting in their injury.\nIn view of my construction of the Immunity Act under the facts of this case, I would also reverse the judgment of the circuit court.\nNeither party discusses the applicability of section 4 \u2014 107. I will consider plaintiff\u2019s argument in regard to section 4 \u2014 102 to apply also to section 4 \u2014 107.", "type": "concurrence", "author": "Mr. JUSTICE BURMAN," } ], "attorneys": [ "Richard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan and Harvey N. Levin, Assistant Corporation Counsel, of counsel), for appellants.", "Cummings & Wyman, of Chicago (Stanley M. Cahn, of counsel), for appellee." ], "corrections": "", "head_matter": "Sandra Yvonne Evans Jamison, Adm\u2019rx, of the Estate of John Jamison, Deceased, Plaintiff-Respondent-Appellee, v. The City of Chicago et al., Defendants-Petitioners-Appellants.\n(No. 58916;\nFirst District (4th Division)\nDecember 20, 1974.\nRehearing denied January 29, 1975.\nBURMAN, J., specially concurring.\nRichard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan and Harvey N. Levin, Assistant Corporation Counsel, of counsel), for appellants.\nCummings & Wyman, of Chicago (Stanley M. Cahn, of counsel), for appellee." }, "file_name": "0326-01", "first_page_order": 350, "last_page_order": 356 }