{ "id": 182714, "name": "GAIL HARINEK, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee", "name_abbreviation": "Harinek v. City of Chicago", "decision_date": "1996-09-25", "docket_number": "No. 1\u201495\u20141206", "first_page": "491", "last_page": "497", "citations": [ { "type": "official", "cite": "283 Ill. App. 3d 491" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "218 Ill. App. 3d 612", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8499144 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "616" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/218/0612-01" ] }, { "cite": "161 Ill. 2d 267", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783184 ], "year": 1994, "pin_cites": [ { "page": "273" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/161/0267-01" ] }, { "cite": "222 Ill. App. 3d 50", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5261674 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/222/0050-01" ] }, { "cite": "157 Ill. 2d 162", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 778585 ], "year": 1993, "pin_cites": [ { "page": "177" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/157/0162-01" ] }, { "cite": "215 Ill. App. 3d 506", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5294758 ], "year": 1991, "pin_cites": [ { "page": "511" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/215/0506-01" ] }, { "cite": "17 F.3d 1074", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 1830329 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/f3d/17/1074-01" ] }, { "cite": "136 Ill. 2d 450", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3255119 ], "year": 1990, "pin_cites": [ { "page": "455-56" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/136/0450-01" ] }, { "cite": "167 Ill. 2d 343", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 222737 ], "year": 1995, "opinion_index": 0, "case_paths": [ "/ill-2d/167/0343-01" ] }, { "cite": "139 Ill. 2d 501", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5573900 ], "year": 1990, "pin_cites": [ { "page": "507" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/139/0501-01" ] }, { "cite": "238 Ill. App. 3d 639", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5156337 ], "year": 1992, "pin_cites": [ { "page": "641" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/238/0639-01" ] }, { "cite": "171 Ill. 2d 378", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57332 ], "weight": 3, "year": 1996, "pin_cites": [ { "page": "388" }, { "page": "387" }, { "page": "387" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/171/0378-01" ] }, { "cite": "98 Ill. 2d 158", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3121711 ], "year": 1983, "pin_cites": [ { "page": "162" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/98/0158-01" ] }, { "cite": "156 Ill. 2d 112", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777542 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/ill-2d/156/0112-01" ] }, { "cite": "238 Ill. App. 3d 399", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5154123 ], "year": 1992, "pin_cites": [ { "page": "402" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/238/0399-01" ] }, { "cite": "177 Ill. App. 3d 337", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3620543 ], "year": 1988, "pin_cites": [ { "page": "338" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/177/0337-01" ] } ], "analysis": { "cardinality": 686, "char_count": 13182, "ocr_confidence": 0.77, "pagerank": { "raw": 7.999201813785357e-08, "percentile": 0.4640316867894615 }, "sha256": "1f642894f6e24a2be2db03a936b4ce25577a43cf437e8d8eeb915920f67ef569", "simhash": "1:95fe4f1462c67470", "word_count": 2219 }, "last_updated": "2023-07-14T17:57:33.654874+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "GAIL HARINEK, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE GREIMAN\ndelivered the opinion of the court:\nGail Harinek (plaintiff) appeals the trial court\u2019s dismissal of her second amended complaint, which states claims of negligence (count II) and wilful and wanton conduct (count III) against the City of Chicago (defendant or the City) for acts that occurred during a fire drill conducted by the City\u2019s fire department (the Department). The trial court\u2019s order of dismissal, entered pursuant to section 2\u2014619 of the Code of Civil Procedure (735 ILCS 5/2\u2014619 (West 1992)), held that the City was immune from liability under the Local Governmental and Governmental Employees Tort Immunity Act (the Act) (745 ILCS 10/1\u2014101 et seq. (West 1992)) and did not owe plaintiff a \"special duty.\u201d\nPlaintiff\u2019s second amended complaint alleges that on April 28, 1993, the Department conducted a fire drill on the eighth floor of the Chicago Title and Trust Building located at 171 North Clark Street in Chicago. Pursuant to a plan conceived by the City\u2019s fire marshall, plaintiff and fellow employees of the Chicago Title Insurance Company were instructed by the fire marshall to assemble in a small corridor near a bank of elevators. Plaintiff was instructed to stand next to a heavy fire door because the corridor was \"overcrowded.\u201d\nDuring the course of the drill, a co-worker unexpectedly opened the door which, due to her position in the door\u2019s path, struck and injured plaintiff.\nIn addition to plaintiff\u2019s claim of negligence, she specifically alleges that the fire marshall was \"uniquely aware of the danger into which he placed Plaintiff, that he was in control of Plaintiff at the time she was injured, and that he owed a special duty towards Plaintiff.\u201d\nThe City moved to dismiss counts II and III, asserting that it did not owe plaintiff a duty in tort and that it was immune from liability by reason of the provisions of the Act.\nThe trial court ruled that the Act barred plaintiff\u2019s claim against the City and dismissed counts II and III of plaintiff\u2019s complaint with prejudice. At the same time, the trial court denied the building owner\u2019s motion to dismiss the count against it on unrelated grounds. Plaintiff appealed to this court pursuant to Supreme Court Rule 304 (155 Ill. 2d R. 304(a)) on April 5, 1995.\nWhen reviewing a motion to dismiss, the court must accept all well-pleaded facts as true and construe all reasonable inferences in favor of the plaintiff. Majewski v. Chicago Park District, 177 Ill. App. 3d 337, 338 (1988). The pertinent inquiry is whether the allegations, when viewed in the light most favorable to the plaintiff, are sufficient to set forth a cause of action upon which relief may be granted. Oropeza v. Board of Education, 238 Ill. App. 3d 399, 402 (1992). Our review of this dismissal is de novo. See Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112 (1993).\nAs a preliminary matter, the parties dispute whether the City owed plaintiff a legal duty of care. The threshold question in a negligence case is whether the defendant owes a duty of care to the plaintiff. Curtis v. County of Cook, 98 Ill. 2d 158, 162 (1983). The existence of a duty and the existence of immunity are separate and distinct issues. Barnett v. Zion Park District, 171 Ill. 2d 378, 388 (1996). Since the abolition of sovereign immunity, our courts have held that governmental units are liable in tort on the same basis as private tortfeasors unless a valid statute dealing with tort immunity imposes limitations upon that liability. Barnett, 171 Ill. 2d at 387. Whether a duty exists is a question of law subject to de novo review. Wolowinski v. City of Chicago, 238 Ill. App. 3d 639, 641 (1992).\nSince we recognize that a private entity would, under the circumstances of this case, owe plaintiff a duty of reasonable care, we reject the City\u2019s claim of \"no duty\u201d based on the common law rule that a governmental body exercising its governmental authority for a governmental purpose is generally not liable in negligence.\nHaving recognized that the City owed plaintiff a duty of reasonable care in the performance of a City-planned and orchestrated fire drill, we next examine whether the City is immune from liability for an alleged breach of that duty.\nAs we have noted, immunity must be predicated upon a specific statutory enactment and units of local government and their employees are immune only to the extent that the General Assembly has provided such immunity. Burdinie v. Village of Glendale Heights, 139 Ill. 2d 501, 507 (1990). Moreover, the provisions of the Act are to be strictly construed as the Act is in derogation of the common law. Sisk v. Williamson County, 167 Ill. 2d 343 (1995).\nSince the trial court does not delineate the section that is the basis of the purported immunity, we must analyze the various sections offered by the City. The City first directs our attention to section 5\u2014102 of the Act, which provides:\n\"Neither 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 745 ILCS 10/5\u2014102 (West 1992).\nThe City is a local public entity that \"provides fire protection services\u201d; however, the immunity granted is only from injuries or damage resulting from failure to suppress or contain a fire or failure to have sufficient personnel, equipment or other fire protection facilities. Plaintiff was not injured by reason of the failure to fight a fire or by a lack of equipment or personnel or by reason of the lack of fire protection facilities.\nWe are required to give effect to the plain and ordinary meaning of the statutory language and may not infer the legislature\u2019s intent no matter how laudable. Hayes v. Mercy Hospital & Medical Center, 136 Ill. 2d 450, 455-56 (1990). Section 5\u2014102 is not a broad grant of immunity, and the activity in which the fire marshall was engaged does not appear to be covered by this section.\nWe should also note the General Assembly is perfectly able to draft a broad grant of immunity if that is its intent. For example, in the section dealing with the immunity afforded with respect to police protection, police are granted the kind of immunity that the City here seeks for its firefighters. Section 4\u2014102 grants immunity for \"failure to provide adequate police protection or service.\u201d 745 ILCS 10/4\u2014102 (West 1992). Providing procedures for and conducting a fire drill are certainly within the ambit of fire service and, if section 5\u2014102 had similar language, firefighters would enjoy the same kind of immunity as their brothers and sisters on the police force.\nPlaintiff alleges that the Department negligently planned the drill, placing plaintiff at risk because she and her fellow employees were instructed to stand in an overcrowded space. More specifically, because the space was inadequate to accommodate the number of employees participating in the drill, plaintiff was instructed to stand in the path of a heavy fire door.\nThe number of Department personnel present during the drill did not contribute to the risk occasioned by the facts of this case, nor did the provision or maintenance of equipment. Similarly, we fail to see how \"facilities,\u201d which we believe refers to Department structures and their locations, are implicated by plaintiff\u2019s complaint. Properly invoked, section 5\u2014102 has been found to provide immunity for failure to supply adequate water pressure, contributing to a fire department\u2019s inability to suppress a fire. Pierce v. Village of Divernon, 17 F.3d 1074 (7th Cir. 1994). The instant case simply does not involve this type of activity, and we must construe a statute as it is and may not, under the guise of construction, supply omissions or add conditions or provisions that would depart from the plain meaning of the language employed in the statute. Buckellew v. Board of Education of Georgetown-Ridge Farm Community Unit School District No. 4, 215 Ill. App. 3d 506, 511 (1991).\nAdditional immunity is available pursuant to section 5\u2014103 of the Act. Section 5\u2014103(b) provides:\n\"Neither a local public entity nor a public employee acting in the scope of his employment, is liable for an injury caused by an act or omission of a public employee while engaged in fighting a fire. However, this Section shall not apply if the injury is caused by the willful and wanton conduct of the public employee.\u201d 745 ILCS 10/5\u2014103(b) (West 1992).\nWe find the language \"while engaged in fighting a fire\u201d to refer to acts or omissions occurring in the course of fighting an actual or present fire, and not in the performance of a fire drill, which by definition relates to a future or potential occurrence.\nThe City relies alternatively on the immunity provided pursuant to section 2\u2014109 and section 2\u2014201 of the Act. Sections 2\u2014109 and 2\u2014201 of the Act grant immunity to public entities for the performance of discretionary functions. Although the City did not cite or argue the above sections before the trial court, the trial court\u2019s decision to dismiss plaintiffs complaint can be sustained on any ground warranted, regardless of whether the trial court specifically relied upon such ground (Messenger v. Edgar, 157 Ill. 2d 162, 177 (1993)) and provided that the factual basis for the ruling appears in the record. Munizza v. City of Chicago, 222 Ill. App. 3d 50 (1991).\nSection 2\u2014201 provides:\n\"Except as otherwise provided by Statute, a public employee serving in a position involving the determination of policy or the exercise of discretion is not liable for an injury resulting from his act or omission in determining policy when acting in the exercise of such discretion even though abused.\u201d 745 ILCS 10/2\u2014201 (West 1992).\nSection 2\u2014109 simply extends this immunity to local public entities. 745 ILCS 10/2\u2014109 (West 1992).\nThe operative language in section 2\u2014201 is \"not liable for an injury resulting from his act or omission in determining policy.\u201d (Emphasis added.) 745 ILCS 10/2\u2014201 (West 1992). Although the City clearly has a policy of fire safety and authorizes its fire department to conduct fire drills in furtherance of this policy, directing plaintiff to stand behind a door, though discretionary, is not a policy determination within the meaning of the Act. Accordingly, we decline to apply section 2\u2014201 immunity to the fire marshall\u2019s actions.\nSince the City owes a duty of care to plaintiff and is not immunized from liability by the Act, we reverse the trial court\u2019s order dismissing count II of plaintiffs complaint. Because we find that the City is not immune from liability, we need not address the special duty exception urged by plaintiff, which operates as an exception once immunity is found to exist.\nLastly, although we need not address the exception for wilful and wanton misconduct, we observe that count III of plaintiffs complaint, viewed in the most favorable light, does not allege a wilful and wanton injury as recently defined by our supreme court: \"[a] wilful or wanton injury must have been intentional or the act must have been committed under circumstances exhibiting a reckless disregard for the safety of others.\u201d Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 273, (1994). Plaintiffs injury was not the result of wilful and wanton conduct on the part of the fire marshall.\nWe therefore affirm the trial court\u2019s dismissal of count III. See Brown, 218 Ill. App. 3d at 615 (appellate court can affirm the dismissal of a complaint pursuant to section 2\u2014619 on any grounds that are supported by the record, regardless of whether the trial court relied on such grounds).\nBeyond this observation, we do not address the merits of count III of plaintiffs complaint, observing only that the particular activity of conducting a fire drill is not recognized in the relevant provisions of the Tort Immunity Act.\nFor the reasons set forth above, we reverse the decision of the trial court as to count II, affirm its dismissal of count III, and remand for further proceedings consistent with this opinion.\nAffirmed in part; reversed in part and remanded.\nTULLY, P.J., and CERDA, J., concur.\nThe City cites Brown v. Chicago Park District, 218 Ill. App. 3d 612 (1991), in support of its \"no duty\u201d claim. The Brown court found that the park district\u2019s operation of a swimming pool was a governmental function rather than a proprietary function. Therefore, the appellate court held that the park district was immune from liability. Brown, 218 Ill. App. 3d at 616. However, as the supreme court recently reaffirmed, the reasoning of Brown was rejected 35 years ago. Barnett v. Zion Park District, 171 Ill. 2d 378, 387 (1996).", "type": "majority", "author": "JUSTICE GREIMAN" } ], "attorneys": [ "Gordon & Gordon, Ltd., of Chicago (Robert E. Gordon and Lisa Thaviu, of counsel), for appellant.", "Susan S. Sher, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Timothy W. Joranko, Assistant Corporation Counsel, of counsel), for appellee." ], "corrections": "", "head_matter": "GAIL HARINEK, Plaintiff-Appellant, v. THE CITY OF CHICAGO, Defendant-Appellee.\nFirst District (3rd Division)\nNo. 1\u201495\u20141206\nOpinion filed September 25, 1996.\nGordon & Gordon, Ltd., of Chicago (Robert E. Gordon and Lisa Thaviu, of counsel), for appellant.\nSusan S. Sher, Corporation Counsel, of Chicago (Lawrence Rosenthal, Benna Ruth Solomon, and Timothy W. Joranko, Assistant Corporation Counsel, of counsel), for appellee." }, "file_name": "0491-01", "first_page_order": 509, "last_page_order": 515 }