{ "id": 5595675, "name": "ERIC McELMEEL et al., Plaintiffs-Appellants, v. THE VILLAGE OF HOFFMAN ESTATES et al., Defendants-Appellees", "name_abbreviation": "McElmeel v. Village of Hoffman Estates", "decision_date": "2005-08-26", "docket_number": "No. 1\u201404\u20140431", "first_page": "824", "last_page": "830", "citations": [ { "type": "official", "cite": "359 Ill. App. 3d 824" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "492 N.E.2d 1292", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "pin_cites": [ { "page": "1296-97" } ], "opinion_index": 0 }, { "cite": "112 Ill. 2d 211", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5538322 ], "year": 1986, "pin_cites": [ { "page": "221-22" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/112/0211-01" ] }, { "cite": "517 N.E.2d 656", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "pin_cites": [ { "page": "662" } ], "opinion_index": 0 }, { "cite": "164 Ill. App. 3d 213", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3582086 ], "year": 1987, "pin_cites": [ { "page": "221" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/164/0213-01" ] }, { "cite": "467 N.E.2d 1153", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "pin_cites": [ { "page": "1157" } ], "opinion_index": 0 }, { "cite": "126 Ill. App. 3d 1059", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3598443 ], "year": 1984, "pin_cites": [ { "page": "1064-65" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/1059-01" ] }, { "cite": "583 N.E.2d 487", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "492" } ], "opinion_index": 0 }, { "cite": "145 Ill. 2d 273", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5596413 ], "year": 1991, "pin_cites": [ { "page": "282" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0273-01" ] }, { "cite": "799 N.E.2d 871", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "873" } ], "opinion_index": 0 }, { "cite": "345 Ill. App. 3d 502", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3738769 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "504" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/345/0502-01" ] }, { "cite": "666 N.E.2d 732", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "734-36" } ], "opinion_index": 0 }, { "cite": "281 Ill. App. 3d 347", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 150181 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "348-52" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/281/0347-01" ] }, { "cite": "619 N.E.2d 119", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "156 Ill. 2d 33", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777561 ], "weight": 2, "pin_cites": [ { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0033-01" ] }, { "cite": "540 N.E.2d 342", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "184 Ill. App. 3d 241", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2637388 ], "pin_cites": [ { "page": "249" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/184/0241-01" ] }, { "cite": "596 N.E.2d 1198", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1989, "opinion_index": 0 }, { "cite": "231 Ill. App. 3d 780", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5201898 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-app-3d/231/0780-01" ] }, { "cite": "48 Ill. App. 3d 567", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3372747 ], "pin_cites": [ { "page": "569" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/48/0567-01" ] }, { "cite": "502 N.E.2d 1243", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "151 Ill. App. 3d 758", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3540477 ], "year": 1977, "pin_cites": [ { "page": "763" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/151/0758-01" ] }, { "cite": "641 N.E.2d 498", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "505" }, { "page": "501-02" } ], "opinion_index": 0 }, { "cite": "161 Ill. 2d 374", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 783173 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "388-90" }, { "page": "381-83" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/161/0374-01" ] }, { "cite": "715 N.E.2d 733", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "pin_cites": [ { "page": "736" } ], "opinion_index": 0 }, { "cite": "306 Ill. App. 3d 927", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1336127 ], "year": 1999, "pin_cites": [ { "page": "930" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/306/0927-01" ] }, { "cite": "619 N.E.2d 732", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "735" }, { "page": "735" }, { "page": "735" } ], "opinion_index": 0 }, { "cite": "156 Ill. 2d 112", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 777542 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "115" }, { "page": "116-17" }, { "page": "116" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/156/0112-01" ] } ], "analysis": { "cardinality": 757, "char_count": 12868, "ocr_confidence": 0.785, "pagerank": { "raw": 6.69119092240753e-08, "percentile": 0.4067694680269004 }, "sha256": "6d040a753db79e553fd3c3b3b2afe9515387b333d2f56c2f0bd45e89f7f35fae", "simhash": "1:3865e7f5f4cdae01", "word_count": 2125 }, "last_updated": "2023-07-14T16:05:25.227457+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ERIC McELMEEL et al., Plaintiffs-Appellants, v. THE VILLAGE OF HOFFMAN ESTATES et al., Defendants-Appellees." ], "opinions": [ { "text": "PRESIDING JUSTICE CAMPBELL\ndelivered the opinion of the court:\nPlaintiffs Eric McElmeel, Elisa McElmeel individually and as independent administrator of the estate of Anthony D. McElmeel, deceased, and Matthew J. Lounds appeal an order of the circuit court of Cook County dismissing their personal injury complaint against defendants Village of Hoffman Estates (Village) and Catherine Bloss, individually and as an agent of the Village. The circuit court ruled that these defendants were immune from liability under state law.\nThe record on appeal discloses the following facts. On December 23, 2000, Lounds was driving an automobile southbound on Barrington Road in Hoffman Estates. Anthony and Eric McElmeel were passengers in the car.\nDefendant Catherine Bloss was employed by the Village as a police officer. On December 23, 2000, the Hoffman Estates police department became aware of a disabled vehicle on Barrington Road. Officer Bloss went to the scene to assist the stranded motorist. Officer Bloss stopped southbound traffic on Barrington Road, in order for a tow truck to pull a minivan out of a snowy ditch. Officer Bloss turned on the flashing lights on top of her squad car, as well as the flashing headlights and taillights, but did not place any flares or similar devices to notify southbound traffic of the need to stop. Officer Bloss and the stranded motorist remained in the squad car while the tow truck worked.\nPlaintiffs\u2019 car was the sixth car stopped behind the parked squad car. A driver of another of the parked cars stated that she did not realize that both southbound lanes were blocked until the last minute, because it had appeared that one of the lanes was open for traffic.\nA car driven by Dagoberto Noyola struck the rear of plaintiffs\u2019 car, causing a six-car, chain-reaction collision. Noyola was later cited for driving under the influence of alcohol. Plaintiff Anthony, who was 18 years old, suffered severe injuries and died five days later. Plaintiff Eric, Anthony\u2019s 17-year-old brother, suffered a severe closed-head injury, resulting in decreased mental status. Plaintiff Matthew bounds, who was 18 years old, suffered brain trauma which paralyzed the right side of his body.\nPlaintiffs filed suit against a number of defendants on December 27, 2000. Plaintiffs ultimately settled two dramshop claims against two defendants, voluntarily dismissed four other defendants and obtained a $16 million default judgment against Noyola, which remains uncollected. Noyola is currently incarcerated. In their pleadings, plaintiffs claim that the Village and Officer Bloss engaged in willful and wanton conduct.\nOn May 8, 2002, the Village and Officer Bloss filed a motion to dismiss the counts against them in plaintiffs\u2019 third amended complaint pursuant to section 2 \u2014 619 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 619 (West 2000)). The Village and Officer Bloss argued that they were immune from liability under the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/1 \u2014 101 et seq. (West 2000)). On December 11, 2002, the trial court granted defendants\u2019 motion to dismiss. The order became final as of January 6, 2004, when the trial court disposed of last remaining causes of action. Plaintiffs now appeal.\nI\nThe issue on appeal is whether the trial court erred in granting defendants\u2019 motion to dismiss. At the outset, we note that the Village or Bloss was named in counts XIII through XVI of the third amended complaint. Counts XIII and XVI were voluntarily dismissed. Plaintiffs state in their brief that they do not contest the dismissal of count XIV Thus, the sole count at issue on appeal is count XV, which alleged willful and wanton conduct.\nDefendants moved to dismiss under section 2 \u2014 619 of the Code, which provides a means of obtaining summary disposition of issues of law or easily proved issues of fact. Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 115, 619 N.E.2d 732, 735 (1993). A section 2 \u2014 619 motion admits the legal sufficiency of the complaint and raises defects, defenses or other affirmative matter which appears on the face of the complaint or is established by external submissions which act to defeat the plaintiffs claim. Joseph v. Chicago Transit Authority, 306 Ill. App. 3d 927, 930, 715 N.E.2d 733, 736 (1999). This court must consider whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law. Kedzie, 156 Ill. 2d at 116-17, 619 N.E.2d at 735. The standard of review is de novo. Kedzie, 156 Ill. 2d at 116, 619 N.E.2d at 735.\nII\nPlaintiffs argue that the trial court erred in ruling that defendants were immune from liability in this case under section 4 \u2014 102 of the Tort Immunity Act, which provides in relevant part as follows:\n\u201cNeither a local public entity nor a public employee is liable 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).\nPlaintiffs claim that section 4 \u2014 102 does not immunize defendants from claims of willful and wanton conduct, relying on section 2 \u2014 202 of the Tort Immunity Act, which 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 conduct.\u201d 745 ILCS 10/2 \u2014 202 (West 2000).\nPlaintiffs also quote at length from our supreme court\u2019s decision in Doe v. Calumet City, 161 Ill. 2d 374, 388-90, 641 N.E.2d 498, 505 (1994):\n\u201cCourts have applied various approaches in construing the willful and wanton language of section 2 \u2014 202 with the common law special duty exception and the specific immunities granted police officers in sections 4 \u2014 102 and 4 \u2014 107. The trial court added a showing of willful and wanton conduct to the requirements needed to show a special duty. The trial court then dismissed the negligence count based on the lack of the control element needed to show a special duty. Several panels of the appellate court have taken a different approach and found that sections 4 \u2014 102 and 4 \u2014 107 provide specific blanket immunity to police officers that prevails over section 2 \u2014 202. (See, e.g., Luber v. City of Highland (1986), 151 Ill. App. 3d 758, 763[, 502 N.E.2d 1243]; Jamison v. City of Chicago (1977), 48 Ill. App. 3d 567, 569.) Under this reasoning, police officers receive immunity even from allegations of willful and wanton conduct. In contrast, some courts have considered willful and wanton conduct to be a statutory exception to the Tort Immunity Act completely separate from the judicially created special duty exception. (See, e.g., Sank v. Poole (1992), 231 Ill. App. 3d 780[, 596 N.E.2d 1198]; Trepachko v. Village of Westhaven (1989), 184 Ill. App. 3d 241, 249[, 540 N.E.2d 342].) Under this reasoning, a plaintiff can state a cause of action for simple negligence by showing a special duty exists, or can allege willful and wanton conduct alone.\nWe find this issue to be settled by this court\u2019s recent decision in Leone v. City of Chicago (1993), 156 Ill. 2d 33[, 619 N.E.2d 119]. The city in Leone argued that the special duty exception required a showing of willful and wanton conduct pursuant to section 2 \u2014 202 of the Tort Immunity Act. This court held that the judicially created special duty exception and the statutory willful and wanton exception were separate and distinct exceptions to municipal and officer immunity. In support, the court noted that \u2018[incorporating a willful and wanton requirement into the special duty doctrine would therefore yield the anomalous result of making recovery more difficult under the doctrine than it already is under the statute. Under these circumstances, the doctrine would cease to operate as an \u201cexception\u201d to sovereign immunity and would instead become an expansion of it.\u2019 (Leone, 156 Ill. 2d at 39.) Therefore, plaintiffs can escape the statutory immunities granted municipalities and their employees either by proving facts that show the existence of a special duty and proving simple negligence or by proving willful and wanton conduct alone.\u201d (Emphasis added.)\nPlaintiffs note that Doe has been followed by this court in Fatigato v. Village of Olympia Fields, 281 Ill. App. 3d 347, 666 N.E.2d 732 (1996), and Ozik v. Gramins, 345 Ill. App. 3d 502, 799 N.E.2d 871 (2003).\nHowever, our supreme court has made clear that the applicability of Doe \u2014 and of section 4 \u2014 102 versus section 2 \u2014 202\u2014depends upon the nature of the governmental activity. \u201cSection 4 \u2014 102 immunity may apply in the context where police officers are simply \u2018providing [or failing to provide] police services,\u2019 but section 2 \u2014 202 immunity requires more particular circumstances for its application, i.e., an act or a course of conduct \u2018in the execution or enforcement\u2019 of law [Citations.]\u201d Aikens v. Morris, 145 Ill. 2d 273, 282, 583 N.E.2d 487, 492 (1991). In Doe, it was alleged that the police declined to break down a door after being informed by an apartment resident that a violent intruder had locked himself inside her apartment with her two minor children. Doe, 161 Ill. 2d at 381-83, 641 N.E.2d at 501-02. In Fatigato, it was alleged that police officers acted in a willful and wanton manner when they told a highly intoxicated man to leave his home after a domestic dispute and permitted him to drive his car while highly intoxicated. Fatigato, 281 Ill. App. 3d at 348-52, 666 N.E.2d at 734-36. In Ozik, it was alleged that the police detained and issued traffic citations to a driver when they knew or should have known that the driver was both underage and intoxicated, but allowed him to retake control of the vehicle. Ozik, 345 Ill. App. 3d at 504, 799 N.E.2d at 873.\nIn contrast, in Long v. Soderquist, 126 Ill. App. 3d 1059, 1064-65, 467 N.E.2d 1153, 1157 (1984), where a deputy was assisting drivers and vehicles involved in two accidents, this court held that the deputy\u2019s failure to light flares near two vehicles, failure to direct the drivers to remove their vehicles from the highway, failure to warn of the presence of the vehicles on the highway, and failure to call for assistance were immunized by section 4 \u2014 102, even though plaintiffs alleged that those failures constituted willful and wanton conduct. Similarly, in Kavanaugh v. Midwest Club, Inc., 164 Ill. App. 3d 213, 221, 517 N.E.2d 656, 662 (1987), this court concluded that \u201cthe 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 involving a motor vehicle that had been driven off the roadway and into a nearby retention pond,\u201d as was alleged by the plaintiffs in that case.\nIn their reply brief, plaintiffs cite Fitzpatrick v. City of Chicago, 112 Ill. 2d 211, 221-22, 492 N.E.2d 1292, 1296-97 (1986), in which our supreme court held that a police officer investigating an automobile accident was \u201cenforcing and executing the law\u201d for the purposes of section 2 \u2014 202 of the Act. In this case, the police officer was not investigating a traffic accident. Also, the Aikens court discusses both Fitzpatrick and Long by distinguishing them, with no indication that Long should be considered bad law.\nIn this case, plaintiffs\u2019 allegations describe police action far more similar to that alleged in Long and Kavanaugh than to that alleged in Doe and its progeny. At the time of the injury, Officer Bloss was assisting a motorist, not investigating the scene. The same was true in Long, even though the motorists there apparently had been in an accident, as the officer there was seeking to check on a motorist\u2019s injury and possibly summon medical assistance. Therefore, we conclude that at the time of the collision, the Village and Officer Bloss were providing police service immunized by section 4 \u2014 102 of the Act, not executing or enforcing the law within the scope of section 2 \u2014 202. Accordingly, the trial court did not err in dismissing the count against Officer Bloss and the Village based on willful or wanton conduct.\nFor all of the aforementioned reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nO\u2019BRIEN and NEVILLE, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE CAMPBELL" } ], "attorneys": [ "Weinberg & Rizzi (Steven J. Rizzi, of counsel), and Law Office of Richard M. Goldwasser (Richard M. Goldwasser, of counsel), both of Chicago, for appellants.", "Judge, James & Kujawa, L.L.C., of Park Ridge (Jay S. Judge and Michael E. Kujawa, of counsel), for appellees." ], "corrections": "", "head_matter": "ERIC McELMEEL et al., Plaintiffs-Appellants, v. THE VILLAGE OF HOFFMAN ESTATES et al., Defendants-Appellees.\nFirst District (5th Division)\nNo. 1\u201404\u20140431\nOpinion filed August 26, 2005.\nWeinberg & Rizzi (Steven J. Rizzi, of counsel), and Law Office of Richard M. Goldwasser (Richard M. Goldwasser, of counsel), both of Chicago, for appellants.\nJudge, James & Kujawa, L.L.C., of Park Ridge (Jay S. Judge and Michael E. Kujawa, of counsel), for appellees." }, "file_name": "0824-01", "first_page_order": 842, "last_page_order": 848 }