{ "id": 3950601, "name": "SANDRA FENDER et al., Indiv. and as Parents and Next Friend of Matty Fender, a Minor, Plaintiffs-Appellants, v. THE TOWN OF CICERO et al., Defendants-Appellees.-COLLEEN M. POULL, as Special Adm'r of the Estates of Kevin Christopher Poull, et al., Deceased Minors, Plaintiff-Appellant, v. THE TOWN OF CICERO, Defendant-Appellee", "name_abbreviation": "Fender v. Town of Cicero", "decision_date": "2004-03-16", "docket_number": "Nos. 1-02-0950, 1-02-3545 cons.", "first_page": "46", "last_page": "55", "citations": [ { "type": "official", "cite": "347 Ill. App. 3d 46" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "713 N.E.2d 1194", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "306 Ill. App. 3d 496", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1336099 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "504" }, { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/306/0496-01" ] }, { "cite": "513 N.E.2d 1002", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "parenthetical": "\"blanket immunity\" under Article V of the Act (fire protection services) is necessary to protect municipalities from \"limitless liability\"" } ], "opinion_index": 0 }, { "cite": "160 Ill. App. 3d 975", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3649242 ], "year": 1987, "pin_cites": [ { "page": "980", "parenthetical": "\"blanket immunity\" under Article V of the Act (fire protection services) is necessary to protect municipalities from \"limitless liability\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/0975-01" ] }, { "cite": "617 N.E.2d 656", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "164 Ill. App. 3d 213", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3582086 ], "weight": 4, "year": 1987, "pin_cites": [ { "page": "216" }, { "page": "216-17" }, { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/0213-01" ] }, { "cite": "586 N.E.2d 564", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "parenthetical": "a police officer was immune under section 4 - 102 in a negligence action arising from a missing-person search" } ], "opinion_index": 0 }, { "cite": "224 Ill. App. 3d 336", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5252597 ], "year": 1991, "pin_cites": [ { "page": "340-41", "parenthetical": "a police officer was immune under section 4 - 102 in a negligence action arising from a missing-person search" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/224/0336-01" ] }, { "cite": "798 N.E.2d 724", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "207 Ill. 2d 331", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 974987 ], "year": 2003, "pin_cites": [ { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/207/0331-01" ] }, { "cite": "797 N.E.2d 167", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "342 Ill. App. 3d 1082", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3474261 ], "year": 2003, "pin_cites": [ { "page": "1086" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/342/1082-01" ] }, { "cite": "793 N.E.2d 845", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "342 Ill. App. 3d 65", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3472793 ], "year": 2003, "pin_cites": [ { "page": "69" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/342/0065-01" ] }, { "cite": "652 N.E.2d 275", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "166 Ill. 2d 204", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198894 ], "year": 1995, "pin_cites": [ { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0204-01" ] }, { "cite": "791 N.E.2d 1250", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "339 Ill. App. 3d 858", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2467898 ], "year": 2003, "pin_cites": [ { "page": "861" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/339/0858-01" ] }, { "cite": "726 N.E.2d 22", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "312 Ill. App. 3d 78", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 411653 ], "year": 2000, "pin_cites": [ { "page": "83" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/312/0078-01" ] }, { "cite": "618 N.E.2d 771", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "248 Ill. App. 3d 1088", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2942026 ], "year": 1993, "pin_cites": [ { "page": "1095" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/248/1088-01" ] }, { "cite": "655 N.E.2d 888", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "Illinois does not provide for suits against fictitious parties" } ], "opinion_index": 0 }, { "cite": "166 Ill. 2d 507", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198899 ], "year": 1995, "pin_cites": [ { "page": "513-15", "parenthetical": "Illinois does not provide for suits against fictitious parties" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0507-01" ] }, { "cite": "01 L 6402", "category": "reporters:state", "reporter": "Lans. Ch.", "weight": 2, "opinion_index": 0 }, { "cite": "97 L 11475", "category": "reporters:state", "reporter": "Lans. Ch.", "opinion_index": 0 }, { "cite": "01 L 6405", "category": "reporters:state", "reporter": "Lans. Ch.", "weight": 2, "opinion_index": 0 }, { "cite": "97 L 15298", "category": "reporters:state", "reporter": "Lans. Ch.", "weight": 2, "opinion_index": 0 }, { "cite": "758 N.E.2d 848", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "197 Ill. 2d 466", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 259095 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "471" }, { "page": "472" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/197/0466-01" ] }, { "cite": "799 N.E.2d 273", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "207 Ill. 2d 359", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 975002 ], "weight": 4, "year": 2003, "pin_cites": [ { "page": "368-69" }, { "page": "377" }, { "page": "379" }, { "page": "380" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/207/0359-01" ] } ], "analysis": { "cardinality": 883, "char_count": 21438, "ocr_confidence": 0.766, "pagerank": { "raw": 7.858644146664531e-08, "percentile": 0.4589348645422957 }, "sha256": "db0b5fe819f47b580ff461fa82cc8faa50b90654d791351608a3c6be753c33b9", "simhash": "1:e0059e5c0fa77c32", "word_count": 3588 }, "last_updated": "2023-07-14T18:28:47.759631+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WOLFSON, EJ., and GARCIA, J, concur." ], "parties": [ "SANDRA FENDER et al., Indiv. and as Parents and Next Friend of Matty Fender, a Minor, Plaintiffs-Appellants, v. THE TOWN OF CICERO et al., Defendants-Appellees.\u2014COLLEEN M. POULL, as Special Adm\u2019r of the Estates of Kevin Christopher Poull, et al., Deceased Minors, Plaintiff-Appellant, v. THE TOWN OF CICERO, Defendant-Appellee." ], "opinions": [ { "text": "JUSTICE CAHILL\ndelivered the opinion of the court:\nPlaintiffs Sandra Fender, Frank Fender and Colleen M. Poull appeal from the dismissals of their complaints against the Town of Cicero (Cicero) and Cicero police officers, including John Doe(s), Waldemar A. Cruz, Louis G. Mazza and Jerry A. Simek, for negligence in failing to rescue the victims of a residential fire. Defendants argued, and the trial court agreed, that the complaints must be dismissed because defendants were immune from liability under the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/1 \u2014 101 et seq. (West 2000)). We affirm.\nOn September 15, 1997, an arson fire at Poull\u2019s home, 2322 S. 61st Avenue, Cicero, resulted in the deaths of Poull\u2019s five children Kevin, Charissa, Shawn and William Poull and Stephanie Martin. The Fenders and their daughter Matty, who apparently were visiting the Poull home at the time of the fire, suffered injuries from exposure to flames and smoke. The first emergency personnel at the scene were Cicero police officers, including Cruz, Mazza and Simek.\nThe Fenders and Poull filed complaints against the Town of Cicero and the individual police officers, alleging negligence for the failure of the officers to attempt a rescue when they knew victims were trapped inside the building. Plaintiffs argued that although Cicero had trained and equipped the police officers to respond to fire emergencies as \u201cpublic safety officers,\u201d the officers did not attempt a rescue. In contending that Cicero held out its police officers to the public as being prepared for fire emergencies, plaintiffs relied on language in a Cicero town handbook, which is not of record. Plaintiffs asserted that Cicero led its citizens to believe that it had instituted a program of extended emergency training for police officers and firemen, and once having voluntarily undertaken such a program, the town should have ensured that the officers would attempt a rescue.\nIn general, municipalities are liable in tort to the same extent as private parties unless an immunity provision applies under the Act (745 ILCS 10/1 \u2014 101 et seq. (West 2000)). Van Meter v. Darien Park District, 207 Ill. 2d 359, 368-69, 799 N.E.2d 273 (2003). The Act \u201cgoverns whether and in what situations local governmental units are immune from civil liability.\u201d Harrison v. Hardin County Community Unit School District No. 1, 197 Ill. 2d 466, 471, 758 N.E.2d 848 (2001). The rationale for immunity is that public officials, when acting within their official discretion, should be allowed to exercise their judgment without fear that a mistake made in good faith might subject them to a lawsuit. Harrison, 197 Ill. 2d at 472.\nThe sections of the Act that are relevant to the plaintiffs\u2019 claims are:\n\u201c\u00a7 2 \u2014 109. A 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 745 ILCS 10/2 \u2014 109 (West 2000).\n\u201c\u00a7 2 \u2014 201. 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\u2014 201 (West 2000).\n\u201c\u00a7 4 \u2014 102. Neither 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, failure to detect or solve crimes, and failure to identify or apprehend criminals.\u201d 745 ILCS 10/4 \u2014 102 (West 2000).\n\u201c\u00a7 5 \u2014 101. Neither a local public entity nor a public employee is liable for failure to establish a fire department or otherwise to provide fire protection, rescue or other emergency service.\u201d 745 ILCS 10/5 \u2014 101 (West 2000).\n\u201c\u00a7 5 \u2014 102. 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 \u2014 102 (West 2000).\n\u201c\u00a7 5 \u2014 103. (a) Neither a local public entity, nor a public employee acting in the scope of his employment, is liable for an injury resulting from the condition of fire protection or firefighting equipment or facilities. ***\n(b) 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 \u2014 103(a), (b) (West 2000).\nSection 1 \u2014 210 of the Act defines \u201cwillful and wanton conduct\u201d 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 or their property.\u201d 745 ILCS 10/1 \u2014 210 (West 2000). This definition applies \u201cin any case where a \u2018willful and wanton\u2019 exception is incorporated into any immunity under this Act.\u201d 745 ILCS 10/1 \u2014 210 (West 2000).\n\u201c\u00a7 8 \u2014 101. No civil action may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued.\u201d 745 ILCS 10/8 \u2014 101 (West 2000).\nWe first discuss the Fender case. The Fenders filed a third amended complaint (No. 97 L 15298) on September 16, 1998, naming as defendants Cicero and its police and fire commissioners, the acting police chief, fire marshal, president, building commissioner and 911 coordinator. The suit also named Cicero police officers as defendants, identifying them only as John Doe(s). The Fenders dismissed the matter voluntarily on May 30, 2000, and refiled on May 30, 2001 (No. 01 L 6405). The refiled complaint still named as defendants Cicero and unnamed police officers identified as John Doe(s), but added the names of Officers Cruz, Mazza and Simek. The Fenders alleged that defendants: (1) were negligent in breaching a voluntarily undertaken duty to perform rescue services by failing to conduct a search after being told that victims were inside the burning building; (2) were not immune from liability because their conduct was willful and wanton; and (3) caused the Fenders to suffer severe and permanent injuries and pecuniary losses.\nDefendants filed a motion to dismiss the Fenders\u2019 complaint under section 2 \u2014 619 of the Code of Civil Procedure (Code) (735 ILCS 5/2\u2014 619 (West 2000)), arguing: (1) the claims against the individual police officers were barred by the one-year statute of limitation in section 8 \u2014 101 of the Act (745 ILCS 10/8 \u2014 101 (West 2000)); (2) defendants were immune from liability for failing to prevent the crimes that led to the fire under section 4 \u2014 102 of the Act (745 ILCS 10/4 \u2014 102 (West 2000)); (3) the individual officers were immune from liability for their discretionary acts under section 2 \u2014 201 of the Act (745 ILCS 10/2\u2014 201 (West 2000)); (4) Cicero was not liable under section 2 \u2014 109 of the Act (745 ILCS 10/2 \u2014 109 (West 2000)); and (5) plaintiffs failed to state a cause of action under the willful and wanton conduct exception to local government immunity under section 5 \u2014 103(b) of the Act (745 ILCS 10/5 \u2014 103(b) (West 2000)).\nThe trial court apparently granted the defendants\u2019 motion to dismiss the Fenders\u2019 complaint in a written order in March 2002, but the Fenders have not provided us with the order by submitting an appendix to their brief. Nor is a copy of the order in the one-volume record on appeal. Other documents of record support the conclusion that the cause was dismissed under sections 2 \u2014 619 and 2 \u2014 615 of the Code (735 ILCS 5/2 \u2014 619, 2 \u2014 615 (West 2000)). The Fenders filed their notice of appeal on April 3, 2002.\nWe now turn to the procedural history of the Poull lawsuit. Poull filed a second amended complaint (No. 97 L 11475) on September 16, 1998, naming as defendants Cicero and its police and fire commissioners, its acting police chief, fire marshal, president, building commissioner, 911 coordinator and John Doe(s), police officer(s). Poull voluntarily dismissed the complaint on May 30, 2000, and refiled on May 30, 2001 (No. 01 L 6402), naming as defendants Cicero and police officers John Doe(s), Cruz, Mazza and Simek.\nCicero filed a motion to dismiss Poull\u2019s complaint under section 2 \u2014 619(a)(5) of the Code. 735 ILCS 5/2 \u2014 619(a)(5) (West 2000) (involuntary dismissal based on certain defects or defenses, such as, the action was not commenced within the time limited by law). The trial court granted the motion in part, finding that the claims against Cruz, Mazza and Simek were barred under the limitation in section 8 \u2014 101 of the Act. 745 ILCS 10/8 \u2014 101 (West 2000) (an action for an injury against the employees of a local entity must be commenced within one year of the date of injury). The court was unpersuaded by Poull\u2019s argument that she complied with the one-year limitation by naming John Doe(s) in her 1998 filing, and held that \u201cJohn Doe\u201d designations were insufficient identification of Officers Cruz, Mazza and Simek under Bogseth v. Emanuel, 166 Ill. 2d 507, 513-15, 655 N.E.2d 888 (1995) (Illinois does not provide for suits against fictitious parties). The trial court granted leave to Poull to amend her complaint to name Cicero as the sole defendant. Poull filed her first amended complaint (No. 01 L 6402) on June 24, 2002, naming Cicero as defendant.\nPoull alleged that Cicero was liable because it: (1) negligently failed to properly equip and train its public safety officers to perform fire search and rescue; (2) engaged in willful and wanton conduct under the Wrongful Death Act (740 ILCS 180/0.01 et seq. (West 2000)); and (3) caused plaintiff to suffer personal, pecuniary and permanent injuries under the Survival Act (755 ILCS 5/27 \u2014 6 et seq. (West 2000)).\n\u25a0 The trial court, in a written order entered on October 25, 2002, granted defendant\u2019s motion to dismiss Poull\u2019s complaint under section 2 \u2014 619 of the Code (735 ILCS 5/2 \u2014 619 (West 2000)). The court concluded that Cicero was immune under sections 4 \u2014 102, 5 \u2014 101 and 5 \u2014 102 of the Act (745 ILCS 10/4 \u2014 102, 5 \u2014 101, 5 \u2014 102 (West 2000)), and that Poull failed to allege sufficient facts to show willful and wanton misconduct as required to defeat immunity under section 5 \u2014 103(b) of the Act (745 ILCS 10/5 \u2014 103(b) (West 2000)). Poull appealed.\nThe Fender and Poull cases have been consolidated on appeal and were briefed in tandem. Defendants initially urge us to dismiss this appeal because the plaintiffs failed to comply with the minimum requirements for briefing appeals by omitting an appendix to the record (134 Ill. 2d R. 342(a)), and failed to cite relevant authority for their claims (210 Ill. 2d R. 341(e)(7)).\nA party\u2019s failure to comply with Supreme Court Rules 341 and 342 justifies dismissal of an appeal. Collier v. Avis Rent A Car System, Inc., 248 Ill. App. 3d 1088, 1095, 618 N.E.2d 771 (1993). As noted, the Fenders failed to include the order from which the appeal is taken. See Piecuch v. Cook County Sheriff\u2019s Merit Board, 312 Ill. App. 3d 78, 83, 726 N.E.2d 22 (2000). But dismissal for these violations is not mandatory, although the deficiencies in briefing this case are glaring. We will consider the appeals because of the gravity of the allegations and the straightforward issues of law that govern our disposition. See Marzano v. Department of Employment Security, 339 Ill. App. 3d 858, 861, 791 N.E.2d 1250 (2003). But we again caution members of the appellate bar: our supreme court rules governing appellate practice are not suggestions. Bright v. Dicke, 166 Ill. 2d 204, 210, 652 N.E.2d 275 (1995). A lawyer who ignores them casts doubt on his skills and casts a shadow over the merits of his client\u2019s case.\nDefendants first argue that the Fender claims against individual officers are barred by the one-year statute of limitation mandated in section 8 \u2014 101 of the Act (745 ILCS 10/8 \u2014 101 (West 2000)). As noted, this was the conclusion reached by the trial court in the Poull case. The Fenders concede they were injured on September 15, 1997, and a timely complaint against the individual officers should have been filed by September 15, 1998. The Fenders\u2019 original complaint (97 L 15298) was filed on September 16, 1998, but it named John Doe(s), not the individual officers, as defendants. After the original complaint was dismissed on May 30, 2000, the Fenders refiled on May 30, 2001 (No. 01 L 6405), naming Cruz, Mazza and Simek as defendants for the first time. By then, the one-year limitation period in section 8 \u2014 101 had expired. We find that the Fender suit against Cruz, Mazza and Simek was barred by the one-year statute of limitation (745 ILCS 10/8 \u2014 101 (West 2000)).\nWe now turn to the question of plaintiffs\u2019 claims against Cicero. Our standard of review is de novo in considering dismissals under section 2 \u2014 615 or 2 \u2014 619 of the Code (Canel v. Topinka, 342 Ill. App. 3d 65, 69, 793 N.E.2d 845 (2003)) and in reviewing questions of statutory interpretation (Hager v. II In One Contractors, Inc., 342 Ill. App. 3d 1082, 1086, 797 N.E.2d 167 (2003)).\nA case may be dismissed under section 2 \u2014 619 where an affirmative matter avoids the legal effect of or defeats the claim. 735 ILCS 5/2 \u2014 619(a)(9) (West 2000); Chandler v. Illinois Central R.R. Co., 207 Ill. 2d 331, 340, 798 N.E.2d 724 (2003). \u201cImmunity from a suit under the [Act] is an \u2018affirmative matter\u2019 properly raised under [section 2 \u2014 619].\u201d Van Meter, 207 Ill. 2d at 377.\nPlaintiffs first argue that section 4 \u2014 102 of the Act (745 ILCS 10/4 \u2014 102 (West 2000)) does not immunize the police officers who were rendering fire protection services here because that section grants immunity specifically for police services. Defendants argue that section 4 \u2014 102 grants immunity to police officers not only when they are combating crime but also when they perform search and rescue functions, citing Platacis v. Village of Streamwood, 224 Ill. App. 3d 336, 340-41, 586 N.E.2d 564 (1991) (a police officer was immune under section 4 \u2014 102 in a negligence action arising from a missing-person search).\nDefendants rely on Kavanaugh v. Midwest Club, Inc., 164 Ill. App. 3d 213, 617 N.E.2d 656 (1987), where the facts and issues were similar to those presented here. There, the plaintiff sued the Village of Oak Brook after her husband died when the car he was driving crashed into a roadside retention pond. Kavanaugh, 164 Ill. App. 3d at 216. The Oak Brook police department was notified of the accident and dispatched several officers, none of whom had underwater rescue equipment. The Oak Brook officers tried unsuccessfully to rescue the victim. The plaintiff claimed that because Oak Brook voluntarily undertook a rescue of the victim, it assumed a duty to perform without negligence. The plaintiff also alleged that Oak Brook was negligent in dispatching personnel without water-rescue training and equipment. Kavanaugh, 164 Ill. App. 3d at 216-17. The court in Kavanaugh found that Oak Brook could not be held liable:\n\u201c[W]e believe the clause in section 4 \u2014 102 granting immunity \u2018for failure to provide adequate police protection or service\u2019 includes the services alleged to have been undertaken by the Oak Brook police officers. While the case law in Illinois has generally examined the immunity granted in section 4 \u2014 102 in the context of the traditional police role of law enforcement, police protection, and apprehension of criminals, we conclude that the phrase \u2018adequate police protection or service\u2019 (emphasis added) in section 4 \u2014 102 includes the police function of responding to a call of a traffic matter ***. Police service, in this context, may also include police aid, assistance, or rescue. Because these functions are commonly recognized as an important part of police services, we believe that the legislature intended to grant immunity for this type of service as well as for police protection.\u201d Kavanaugh, 164 Ill. App. 3d at 221.\nThe conclusion reached in Kavanaugh applies here. The immunity granted under section 4 \u2014 102 covered the Cicero police officers serving as public safety officers at the scene of a fire, as it covered the officers responding to an accident in Kavanaugh. It is not reasonable to believe that the legislature intended to deny immunity to police officers who were working at the scene of a tragic fire while conferring immunity on officers apprehending criminals. Under sections 4 \u2014 102 (745 ILCS 10/4 \u2014 102 (West 2000)) and 2 \u2014 109 (745 ILCS 10/2 \u2014 109 (West 2000)) of the Act, neither the public entity of Cicero nor the town\u2019s police officers at the scene can be held liable for failure to attempt a rescue.\nAlternatively, plaintiffs argue that even if Cicero had general immunity from liability for fire protection services under sections 5 \u2014 101 and 5 \u2014 102 of the Act (745 ILCS 10/5 \u2014 101, 5 \u2014 102 (West 2000)), liability should attach under the exception in section 5 \u2014 103(b) of the Act (745 ILCS 10/5 \u2014 103(b) (West 2000)), i.e., the officers engaged in \u201cwillful and wanton conduct.\u201d Plaintiffs contend that their complaints should not have been dismissed but, rather, a trier of fact should have determined if the officers were \u201cwillful and wanton\u201d in failing to mount a rescue after being told that victims were trapped in the burning building.\nDefendants assert that Cicero was immune from liability whether or not there was willful and wanton conduct because: (1) discretionary acts are immunized in section 2 \u2014 201 of the Act (745 ILCS 10/2 \u2014 201 (West 2000)) even if public employees are found to have abused their discretion and (2) sections 5 \u2014 101 and 5 \u2014 102 of the Act (745 ILCS 10/ 5 \u2014 101, 5 \u2014 102 (West 2000)) provide \u201cblanket immunities\u201d not subject to the exception fox willful and wanton conduct. See Jackson v. Chicago Fire Fighter\u2019s Union Local No. 2, 160 Ill. App. 3d 975, 980, 513 N.E.2d 1002 (1987) (\u201cblanket immunity\u201d under Article V of the Act (fire protection services) is necessary to protect municipalities from \u201climitless liability\u201d).\nDefendants rely on Crowley v. City of Berwyn, 306 Ill. App. 3d 496, 713 N.E.2d 1194 (1999), for its holding that section 2 \u2014 201 provides immunity to public employees even when the employees have abused their discretion. In Crowley, the plaintiff alleged that the actions of the City of Berwyn were willful and wanton based on the city\u2019s unreasonable delay in rescuing the plaintiff who suffered burns in an apartment building fire. Crowley, 306 Ill. App. 3d at 504. The court disagreed, concluding, \u201c[e]ven willful and wanton conduct cannot deprive a municipality of immunity granted by the Act. [Citation.] Discretionary acts such as those of the firefighters in this case are subject to immunity under section 2 \u2014 201 of the Act.\u201d Crowley, 306 Ill. App. 3d at 504.\nHere, it was unnecessary for a trier of fact to determine whether the police officers\u2019 actions were willful and wanton because even if the acts were found to be willful and wanton, immunity would still apply under section 2 \u2014 201 of the Act (745 ILCS 10/2 \u2014 201 (West 2000)).\nOur supreme court recently addressed immunity under section 2 \u2014 201 in its plurality opinion in Van Meter. The court reiterated its position that immunity applies where a municipal defendant establishes that a situation involved both \u201cthe making of a policy choice and the exercise of discretion.\u201d Van Meter, 207 Ill. 2d at 379. Policy decisions are those \u201crequiring a governmental entity to balance competing interests and to make a judgment call as to what solution will best serve those interests.\u201d Van Meter, 207 Ill. 2d at 379. Discretionary actions are those that axe unique to a particular public office. Van Meter, 207 Ill. 2d at 380.\nHere, the officers had to make a policy decision in balancing the competing interests of their own safety and their chances of success with the interests of the victims and survivors. The officers\u2019 actions were discretionary because performing an emergency rescue in this situation was unique to the public office of police/public safety officer. Having determined that even \u201cwillful and wanton\u201d conduct could not extinguish the officers\u2019 immunity, we find that plaintiffs\u2019 complaints were barred by the affirmative matter of municipal immunity and properly dismissed under section 2 \u2014 619 (735 ILCS 5/2 \u2014 619 (West 2000)). The judgment of the circuit court is affirmed.\nAffirmed.\nWOLFSON, EJ., and GARCIA, J, concur.", "type": "majority", "author": "JUSTICE CAHILL" } ], "attorneys": [ "Scott E. Encher, of Romanucci & Blandin, of Chicago, for appellants.", "Dennis E. Both, of Edward R. Vrdolyak, Ltd., of Chicago, for appellees." ], "corrections": "", "head_matter": "SANDRA FENDER et al., Indiv. and as Parents and Next Friend of Matty Fender, a Minor, Plaintiffs-Appellants, v. THE TOWN OF CICERO et al., Defendants-Appellees.\u2014COLLEEN M. POULL, as Special Adm\u2019r of the Estates of Kevin Christopher Poull, et al., Deceased Minors, Plaintiff-Appellant, v. THE TOWN OF CICERO, Defendant-Appellee.\nFirst District (2nd Division)\nNos. 1\u201402\u20140950, 1\u201402\u20143545 cons.\nOpinion filed March 16, 2004.\nScott E. Encher, of Romanucci & Blandin, of Chicago, for appellants.\nDennis E. Both, of Edward R. Vrdolyak, Ltd., of Chicago, for appellees." }, "file_name": "0046-01", "first_page_order": 64, "last_page_order": 73 }