JAMISON v. CITY OF CHICAGO

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Docket Number

No. 76-432

Attorney(S)

William R. Quinlan, Corporation Counsel, of Chicago (Daniel R. Pascale and Peter Fitzpatrick, Assistant Corporation Counsel, of counsel), for appellants. Daniel Nagle, of Chicago (Stanley M. Cahn, of counsel), for appellee.

Judges

Mr. JUSTICE LINN delivered the opinion of the court:

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Smart Summary

Factual and Procedural Background

On January 1, 1972, James O'Malley shot and killed John Jamison. For three days prior to the shooting, O'Malley's son, Daniel, repeatedly informed Chicago police officers assigned to the 8th District that O'Malley was behaving strangely and violently toward family members and requested that his father be arrested. The police did not attempt to arrest or otherwise restrain James O'Malley, and his behavior culminated in the shooting of Jamison.

As administratrix of Jamison's estate, plaintiff brought a wrongful-death suit against the City of Chicago and individual Chicago police officers, alleging among other things willful and wanton negligence for refusing to arrest O'Malley despite repeated requests. Defendants moved to strike and dismiss the complaint based on sections 4-102 and 4-107 of the Illinois Local Governmental and Governmental Employees Tort Immunity Act. The trial court denied the motion and certified the question for interlocutory appeal under Supreme Court Rule 308. This court previously reversed the trial court for failure to dismiss because the complaint initially lacked sufficient factual allegations; after remand the complaint was amended and the sufficiency of allegations is not now in issue. The trial court again denied defendants' motion but certified the question for appeal; defendants were granted leave to appeal. The appellate court now reverses the trial court's order.

Legal Issues Presented

Whether sections 4-102 and 4-107 of the Illinois Local Governmental and Governmental Employees Tort Immunity Act bar plaintiff's recovery for defendants' alleged failure to arrest James O'Malley.
Whether section 2-202 of the Act (the general provision addressing willful and wanton negligence by public employees) supersedes or limits the immunity provided in articles IV (specifically sections 4-102 and 4-107) with respect to police failure to make an arrest.

Arguments of the Parties

Defendants' Arguments

Defendants moved to strike and dismiss the complaint on the basis of the Tort Immunity Act, specifically invoking section 4-102 (immunity for failure to provide police protection, failure to prevent crimes, and failure to apprehend criminals) and section 4-107 (immunity for injury caused by the failure to make an arrest or by releasing a person in custody).

Plaintiff's Arguments

Plaintiff contended that article II of the Act, particularly section 2-202 (which states a public employee is not liable for acts or omissions in execution or enforcement of any law unless such act or omission constitutes willful and wanton negligence), is a specific provision that governs over the more general immunity provisions of article IV and thus imposes liability for willful and wanton misconduct by public employees.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jamison v. City of Chicago (1975), 25 Ill. App.3d 326, 323 N.E.2d 118	Referenced as the court's prior opinion in which this court reversed the trial court because the original complaint contained too few facts to state willful and wanton negligence.	The court recalled that prior disposition and noted the case history; that prior decision prompted amendment of the complaint and framed the procedural posture on remand.
Jamison v. City of Chicago (1974), 25 Ill. App.3d 326, 330, 323 N.E.2d 118, 122	Quoted for Justice Burman's concurring reasoning that sections 4-102 and 4-107 reflect legislative wisdom to provide police immunity to avoid limitless liabilities arising from numerous protective complaints.	The court expressly concurred with Justice Burman's reasoning in that concurring opinion and relied on it in concluding that sections 4-102 and 4-107 afford immunity from liability for failure to effect an arrest.

Court's Reasoning and Analysis

The court began by identifying the statutory provisions at issue. It quoted section 4-102, which provides immunity for a local public entity or public employee for failure to establish a police department, to provide police protection, to provide adequate police protection or service, and for "failure to prevent the commission of crimes and failure to apprehend criminals." It likewise quoted section 4-107, which states that neither a local public entity nor a public employee is liable for an injury caused by the "failure to make an arrest" or by releasing a person in custody.

Applying those provisions to the facts alleged, the court concluded that the language of sections 4-102 and 4-107 is unequivocal and affords defendants immunity in the present case: whatever duty the officers had to arrest O'Malley, the Act provides no recourse for breach of that duty. The court then addressed plaintiff's contention that section 2-202 (which conditions liability of a public employee for acts or omissions in execution or enforcement of any law upon a finding of willful and wanton negligence) limits the scope of the immunities in article IV.

The opinion observed that section 2-202 is broader in reach—pertaining to all public employees and to the execution or enforcement of "any law"—while sections 4-102 and 4-107 are specific to police and their enforcement functions. The court found no conflict between these provisions: section 2-202 provides immunity in certain circumstances for negligence, but section 4-107 supplies a "blanket immunity" regarding police discretion over arrests. The court expressly adopted Justice Burman's concurring reasoning that the legislature's provisions were intended to protect police and municipalities from limitless liability arising from daily protective complaints. On that basis, the court concluded the statutory immunities bar plaintiff's claim based on the alleged failure to arrest.

Holding and Implications

REVERSED

Holding: The appellate court reversed the order of the circuit court of Cook County that had denied defendants' motion to strike and dismiss; the court concluded that sections 4-102 and 4-107 of the Illinois Tort Immunity Act bar liability for the alleged failure to arrest.

Implications: The direct effect is that plaintiff's claim premised on defendants' alleged failure to arrest James O'Malley is barred by statutory immunity under sections 4-102 and 4-107 as interpreted by the court, and the trial court's denial of the motion to dismiss is reversed. The opinion does not announce a separate new common-law rule beyond applying the statutory provisions and concurs with the reasoning previously expressed by Justice Burman regarding legislative purpose and scope of those immunities.

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SANDRA YVONNE EVANS JAMISON, Adm'r of the Estate of John Jamison, Deceased, Plaintiff-Appellee, v. THE CITY OF CHICAGO et al., Defendants-Appellants.

Mr. JUSTICE LINN delivered the opinion of the court:

On January 1, 1972, James O'Malley shot and killed John Jamison. For three days prior to the shooting, O'Malley's son, Daniel, had repeatedly informed Chicago police officers assigned to the 8th District that O'Malley was behaving strangely and had acted violently toward members of his family. Daniel requested that his father be arrested. The police did not attempt to arrest James O'Malley or otherwise restrain him. O'Malley's aberrant behavior ended in the shooting of Jamison, whom he had never seen before.

Plaintiff, as administratrix of the estate of John Jamison, brought suit against the City of Chicago and the individual Chicago police officers for wrongful death. The complaint alleged, inter alia, that the individual defendants were guilty of willful and wanton negligence for refusing to arrest O'Malley, despite numerous requests to do so, and after complaints concerning his highly irrational and criminal behavior.

Defendants moved that the complaint be stricken and dismissed on the basis of section 4-102 of the Local Governmental and Governmental Employees Tort Immunity Act. (Ill. Rev. Stat. 1971, ch. 85, par. 4-102.) The trial court denied the motion and certified the question of the propriety of the denial for appeal pursuant to Supreme Court Rule 308. (Ill. Rev. Stat. 1971, ch. 110A, par. 308.) We granted defendants petition for leave to appeal.

In our opinion, we held that it was unnecessary to address ourselves to the question presented because plaintiff's complaint contained too few facts to constitute a sufficient allegation of willful and wanton negligence. The trial court was therefore reversed for failing to grant defendants' motion to strike and dismiss. Jamison v. City of Chicago (1975), 25 Ill. App.3d 326, 323 N.E.2d 118.

Upon remand to the trial court, plaintiff's complaint was amended to include more specific allegations. The sufficiency of the allegations are not now in issue. Defendants again moved to strike and dismiss the complaint on the basis of the Tort Immunity Act. The trial court denied the motion, but again certified the issue for appeal.

We reverse the order of the trial court.

In our original opinion in this case ( Jamison v. City of Chicago (1975), 25 Ill. App.3d 326, 323 N.E.2d 118), Justice Burman wrote a specially concurring opinion setting forth his view that sections 4-102 and 4-107 of the Act (Ill. Rev. Stat. 1971, ch. 85, pars. 4-102, 4-107) preclude relief to an injured party in a situation such as that specified in the complaint. Although the majority of this court felt this issue did not need to be dealt with at that time, the question is now appropriately before this court. We concur with the reasoning of Justice Burman.

Section 4-102 of the Illinois Local Governmental and Governmental Employees Tort Immunity Act, under "Article IV-Police and Correctional Activities," provides:

"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 and failure to apprehend criminals." (Emphasis added.)

In addition, section 4-107 of that Act, also under article IV, further provides:

"Neither a local public entity nor a public employee is liable for an injury caused by the failure to make an arrest or by releasing a person in custody." (Emphasis added.)

These provisions are unequivocal in stating that defendants enjoy immunity from liability in the present case. Whatever duty the individual defendants were under, as police officers, to effect the arrest of James O'Malley, no recourse is afforded for the breach of that duty.

Plaintiff, however, contends that the scope of these provisions contained in the Tort Immunity Act are limited by article II of the same Act, entitled "General Provisions Relating to Immunity." (Ill. Rev. Stat. 1971, ch. 85, pars. 2-101 et seq.) It is argued that section 2-202 is a specific provision which governs over the conflicting general immunity sections of the Act in article IV and imposes liability on defendants for their willful and wanton misconduct.

Section 2-202 of the Tort Immunity Act (Ill. Rev. Stat. 1971, ch. 85, par. 2-202) states:

"A 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."

Section 2-202 is broader than sections 4-102 and 4-107 in two respects: (1) it pertains to all public employees (2) in the execution or enforcement of any law. Sections 4-102 and 4-107 pertain specifically to police and their function in enforcing the criminal law and making arrests. Section 4-107 cannot be plainer in affording immunity for the failure to make an arrest.

We do not find a conflict between sections 2-202, 4-102, and 4-107. While section 2-202 provides immunity for negligence committed under certain circumstances, section 4-107 provides blanket immunity in the area of police discretion over arrests. As Justice Burman noted in his concurring opinion, "[w]hen 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 immunity to police as contained in sections 4-102 and 4-107 or otherwise municipalities would be exposed to limitless liabilities." Jamison v. City of Chicago (1974), 25 Ill. App.3d 326, 330, 323 N.E.2d 118, 122.

For the foregoing reasons, the order of the circuit court of Cook County is reversed.

Reversed.

DIERINGER, P.J., and JOHNSON, J., concur.