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Barnes v. Chicago Housing Authority

Case Date: 12/03/2001
Court: 1st District Appellate
Docket No: 1-00-2856 Rel

1-00-2856                                                                                                                                                       First Division
December 3, 2001


JOHNNY R. BARNES, ANGELA BARNES
and ANGELA FOSTER,

          Plaintiffs-Appellants,

                    v.

THE CHICAGO HOUSING AUTHORITY, a
Municipal corporation, and LeCLAIRE
COURTS RESIDENT MANAGEMENT
CORPORATION, a Not-for-profit Corporation,

          Defendants-Appellees.

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)		 Appeal from the
Circuit Court of
Cook County.


No. 94 L 9046



The Honorable
Diane Joan Larsen and
Sophia H. Hall,
Judges Presiding.

PRESIDING JUSTICE COHEN delivered the opinion of the court:

Plaintiffs Johnny R. Barnes, Angela Barnes and Angela Foster appeal the dismissal of theirthird amended complaint against defendant Chicago Housing Authority (CHA), as well as the orderof the trial court granting summary judgment in favor of defendant LeClaire Courts ResidentManagement Corporation (LCRMC), a private, not-for-profit corporation. The issue before the courtis one of first impression: whether the LCRMC is a "local public entity" within the meaning ofsection 1-206 of the Local Governmental and Governmental Employees Tort Immunity Act (745ILCS 10/1-206 (West 2000) (the Tort Immunity Act)). If the LCRMC is determined to be a "localpublic entity," then the LCRMC is immune from liability for its alleged failure to provide adequatesecurity at the LeClaire Courts public housing development. 745 ILCS 10/4-102 (West 2000). Should we determine that the LCRMC enjoys immunity under the Act, the plaintiffs then urge usto hold that the legislature exceeded the scope of its authority in extending such immunity to theLCRMC and ask that we declare section 1-206 unconstitutional.

We hold that the trial court correctly dismissed plaintiffs' third amended complaint as to theCHA. We further hold that the LCRMC is a "local public entity" within the meaning of section 1-206, and is therefore immune from plaintiffs' allegations of failure to provide adequate policeprotection at LeClaire Courts. The trial court correctly entered summary judgment in favor of theLCRMC and we affirm. 

BACKGROUND

On June 17, 1994, plaintiff Johnny R. Barnes was visiting his wife and daughter, co-plaintiffsAngela Barnes and Angela Foster, at their residence in the LeClaire Courts public housingdevelopment on 43rd Street in Chicago. LeClaire Courts was owned by defendant CHA andmanaged by defendant LCRMC. While on the LeClaire Courts premises, Mr. Barnes observed hisdaughter, Angela Foster, being attacked and severely beaten by a group of teenage gang members. When Mr. Barnes attempted to intervene, he was shot by one of the gang members, resulting inpermanent paralysis below the waist.

For several years prior to the date of the shooting, the LCRMC had contracted to provideprivate security services for the LeClaire Courts development. On that date, however, no privatesecurity officers were present on the LeClaire Courts premises.

In order to contract for outside security services, the LCRMC was required to submitproposed contracts to the CHA (and ultimately to the United States Department of Housing andUrban Development (HUD)) for review and approval. In this case, the contract in effect betweenthe LCRMC and Network Security, a private security company, had expired prior to the date of theshooting. Prior to the expiration of the Network Security contract, the LCRMC had submitted tothe CHA a proposed contract to retain the services of Tight Security, Inc., which was scheduled tobegin providing security services on the LeClaire Courts premises on April 1, 1994. However, theCHA had not yet approved funding for the LCRMC's proposed Tight Security contract, resulting ina 6 to 8-week gap in private security coverage at the LeClaire Courts complex. It was during thisgap that Mr. Barnes and his daughter were injured.

Several police officers offered deposition testimony that at the time of the shooting, theLeClaire Courts development was hotly contested turf in an armed conflict involving no fewer thannine different street gangs. These officers further testified to a dramatic increase in criminal activityat the LeClaire Courts development in 1994 following the expiration of the Network Securitycontract.

Johnny Barnes and Angela Foster brought an action to recover damages for injuries sustainedduring the attack at LeClaire Courts. Plaintiffs' third amended complaint contained eight counts,with different plaintiffs seeking relief under each count.(1) In paragraph 24 of counts I and II, plaintiffsalleged that the CHA committed willful and wanton misconduct in that it:

"A. Failed to adequately police the premises of the LeClaire Courts with its own police force;

B. Failed to act on defendant [LCRMC]'s request for approval to hire a new private security firm for the LeClaire Courts before June 17, 1994;

C. Mismanaged the LeClaire Courts by failing to oversee defendant[LCRMC];

D. Failed to adequately monitor defendant [LCRMC] after defendant [LCRMC] was placed on probation by defendant CHA;

E. Failed to adequately monitor the crime statistics at the LeClaire Courts and thereforefailed to recognize that the LeClaire Courts were in a high crime area in need ofadditional security and/or police; and

F. Increased the danger at the LeClaire Courts by failing to police the premises after thecontract with Network Security had not been renewed and after gang activity andincidences of violence increased markedly, and after defendant CHA knew, or shouldhave known, that gang activity and incidences of violence would increase after thecontract with Network Security was terminated."

In counts III and IV, plaintiffs alleged negligence against the CHA on identical grounds.

In paragraph 24 of counts V and VI, plaintiffs alleged that the LCRMC committed willfuland wanton misconduct in that it:

"A. Failed to renew the contract of the previous security firm without first making certain that a new security firm was in place;

B. Failed to possess and apply the requisite degree of skill and care in managing thepremises, in making an oral promise to hire Tight Security, and then not hiring anyprivate security to take the place of Network Security until after June 17, 1994;

C. Failed to protect the plaintiffs from injury when the defendant [LCRMC] knew orshould have known of the increased dangers and crime on the premises after thecontract with Network Security was not renewed; and

D. Increased the danger on the premises by failing to police the premises after the contract with Network Security was not renewed and gang activity and incidences ofviolence increased markedly."

In counts VII and VIII, plaintiffs alleged negligence against the LCRMC on identical grounds.

On July 15, 1999, the trial court granted the CHA's motion to dismiss plaintiffs' thirdamended complaint pursuant to section 2-619 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-619 (West 2000). The trial court found that the CHA was immune from liability pursuant to sections2-104, 2-201, 3-108 and 4-102 of the Tort Immunity Act. 745 ILCS 10/2-104, 2-201, 3-108 and 4-102 (West 2000). On December 17, 1999, predicated on a finding that the LCRMC was a "localpublic entity" within the meaning of section 1-206 of the Tort Immunity Act, the trial court: (1) heldthat the LCRMC was immune from liability under section 4-102 for failure to provide security onthe LeClaire Courts premises; and (2) granted the LCRMC's motion for summary judgment. 745ILCS 10/1-206, 4-102 (West 2000).

Plaintiffs moved for reconsideration of the order granting summary judgment in favor of theLCRMC. Plaintiffs argued that as a private, not-for-profit corporation, the LCRMC was not a "localpublic entity" within the meaning of section 1-206. Plaintiffs further argued to the trial court thatif it construed section 1-206 to cover the LCRMC, then it must find section 1-206 to beunconstitutional in that the General Assembly had exceeded its authority in granting sovereignimmunity to a "non-sovereign." The trial court denied plaintiffs' motion to reconsider, specificallyfinding section 1-206 to be constitutional. This appeal followed.

ANALYSIS

1. CHA

A. Adequate Police Protection

We first consider plaintiffs' argument that the trial court erred in dismissing plaintiffs' thirdamended complaint as to the CHA. Motions to dismiss pursuant to section 2-619 of the IllinoisCode of Civil Procedure (735 ILCS 5/2-619 (West 2000)) are reviewed de novo. Neppl v. Murphy,316 Ill. App. 3d 581, 583 (2000).

The trial court ruled that under the Tort Immunity Act, the CHA was immune from liabilityfor both negligence and willful and wanton misconduct as to each of the allegations set forth insubparagraphs 24A through F of plaintiffs' third amended complaint. Plaintiffs do not dispute thatthe CHA, as a municipal corporation, is a "local public entity" within the meaning of section 1-206of the Tort Immunity Act. 745 ILCS 10/1-206 (West 2000); Davis v. Chicago Housing Authority,136 Ill. 2d 296, 299-300 (1990). Rather, plaintiffs argue that the trial court erred in applying varioussections of the Tort Immunity Act to the CHA.

In subparagraphs 24A, E and F, plaintiffs alleged that the CHA failed to provide adequatepolice protection on the LeClaire Courts premises.(2) The trial court found the CHA immune fromthese allegations under section 4-102 of the Tort Immunity Act. Section 4-102 provides:

"Neither a local public entity nor a public employee is liable for failure toestablish a police department or otherwise provide police protection service or, ifpolice protection service is provided, for failure to provide adequate police protectionor service, failure to prevent the commission of crimes, failure to detect or solvecrimes, and failure to identify or apprehend criminals. This immunity is not waivedby a contract for private security service, but cannot be transferred to any non-publicentity or employee." 745 ILCS 10/4-102 (West 2000).

Section 4-102 notwithstanding, plaintiffs argue that where the CHA has voluntarilyundertaken to provide security at one of its housing developments, the CHA may be held liable on a theory of willful and wanton misconduct for failure to protect an invitee on CHA property from criminal attack by a third party. Pippin v. Chicago Housing Authority, 78 Ill. 2d 204, 209 (1979); Cross v. Wells Fargo Alarm Services, 82 Ill. 2d 313, 317 (1980); Phillips v. Chicago HousingAuthority, 89 Ill. 2d 122, 129 (1982); Hernandez v. Rapid Bus Co., 267 Ill. App. 3d 519, 524 (1994). Plaintiffs' argument lacks merit. Our decision in Lawson v. City of Chicago, 278 Ill. App.3d 628 (1996), controls. In Lawson, we discussed whether the voluntary undertaking doctrine wouldsupercede the City of Chicago's immunity from liability under section 4-102 for its alleged failureto operate metal detectors installed at Tilden High School. Lawson, 278 Ill. App. 3d at 634-35. Asin the case at bar, the plaintiff in Lawson relied on Cross v. Wells Fargo Alarm Services, 82 Ill. 2d313 (1980), in support of its voluntary undertaking theory. The plaintiff in Lawson further relied onSiklas v. Ecker Center for Mental Health, Inc., 248 Ill. App. 3d 124 (1993), and Comastro v. Villageof Rosemont, 122 Ill. App. 3d 405 (1984). In considering these cases, we stated:

"Cross and Siklas are not relevant to the case at bar since those cases did not involvethe Tort Immunity Act. See Rascher v. City of Champaign, 262 Ill. App. 3d 592, 595* * * (1994) ('[Cross] did not involve the question of governmental tort immunityand, therefore, lends no support to plaintiff's position' that [the] city's voluntaryundertaking overrides [the] Tort Immunity Act). The Tort Immunity Act wasinapplicable in Comastro as well, not because of the absence of an undertaking bya governmental entity but because the governmental entity was engaged in anongovernmental function and thus was held to the same standard as a privatecitizen. * * * In accordance with section 4-102 of the Tort Immunity Act, theCity was immune from liability for any alleged failure to provide adequate policeprotection or to prevent the commission of the alleged crime. The City's undertakingto operate the metal detectors does not override the Tort Immunity Act nor does itprevent that statutory immunity from attaching to immunize the City from liabilityfor any alleged negligence in the performance of that function. See Rascher v. Cityof Champaign [, 262 Ill. App. 3d at 595]; Hill v. Chicago Housing Authority, 233 Ill.App. 3d 923 * * * (1992); Burley v. On Waterfront, Inc., 228 Ill. App. 3d 412, 419* * * (1992) (extending the voluntary undertaking theory to municipality would'effectively abrogate the tort immunity provided by section 4-102 of the Act')." Lawson, 278 Ill. App. 3d at 635.

We note that the plaintiff in Lawson alleged only negligence against the City of Chicago. Lawson,278 Ill. App. 3d at 631-32. However, we can find no reason to depart from Lawson where, as here,plaintiffs attempt to hold the CHA liable on a theory of willful and wanton misconduct. None of thecases upon which plaintiffs rely involve or even address the Tort Immunity Act. The "voluntaryundertaking" doctrine cannot supercede the CHA's statutory immunity from allegations of eithernegligence or willful and wanton misconduct. Lawson, 278 Ill. App. 3d at 635. Under the plainlanguage of section 4-102, the CHA was clearly immune from liability for failure to provide policeprotection on the LeClaire Courts premises. 745 ILCS 10/4-102 (West 2000).

Plaintiffs direct us to the decision of our supreme court in Doe v. Calumet City, 161 Ill. 2d374 (1994), for the proposition that "plaintiffs can escape the statutory immunities grantedmunicipalities and their employees either by proving facts that show the existence of a special dutyand proving simple negligence or by proving willful and wanton conduct alone." (Emphasis added.)Doe, 161 Ill. 2d at 390. Plaintiffs argue that Doe supports the existence of a willful and wantonmisconduct exception to the immunity granted in section 4-102. We disagree.

Doe discussed the immunity of police officers from liability for injuries caused whileexecuting their official duties. Doe, 161 Ill. 2d at 388-91. Section 2-202 of the Tort Immunity Actstates that "[a] public employee is not liable for his act or omission in the execution or enforcementof any law unless such act or omission constitutes willful and wanton conduct." (Emphasis added.) 745 ILCS 10/2-202 (West 2000). By its plain language, section 2-202 applies only to "publicemployee[s]," which are defined in the Tort Immunity Act as "employee[s] of a local public entity." (Emphasis added.) 745 ILCS 10/1-207, 2-202 (West 2000). The CHA is clearly a local publicentity, not a public employee. Compare 745 ILCS 10/1-206 (West 2000) (defining "local publicentity") with 745 ILCS 10/1-207 (West 2000) (defining "public employee"). Thus, the "willful andwanton" immunity exception set forth in section 2-202 does not apply to the CHA. Doe is thereforeinapposite. See also Fatigato v. Village of Olympia Fields, 281 Ill. App. 3d 347, 355-357 (1996)(discussing Doe and the reasoning of our supreme court therein).

In re Chicago Flood Litigation, 176 Ill. 2d 179 (1997), further undercuts plaintiffs' argument. In Chicago Flood, our supreme court considered whether an exception for willful and wantonmisconduct could be read into the grant of immunity under section 2-201 of the Tort Immunity Act(745 ILCS 10/2-201 (West 2000)), where section 2-201 did not specifically provide for such anexception. The court held:

"The plain language of section 2-201 is unambiguous. That provision doesnot contain an immunity exception for willful and wanton misconduct. Where thelegislature has chosen to limit an immunity to cover only negligence, it hasunambiguously done so. Since the legislature omitted such a limitation from theplain language of section 2-201, then the legislature must have intended to immunizeliability for both negligence and willful and wanton misconduct." Chicago Flood,176 Ill. 2d at 196.

"The primary rule of interpreting statutes, to which all other rules are subordinate, is that acourt should ascertain and give effect to the intent of the legislature. The court should seek thelegislative intent primarily in the language of the statute." Henrich v. Libertyville High School, 186Ill. 2d 381, 387 (1998). Section 4-102 contains no language creating an exception for willful andwanton misconduct. 745 ILCS 10/4-102 (West 2000). In the absence of such language, no willfuland wanton misconduct exception to the immunity granted in section 4-102 exists. Chicago Flood,176 Ill. 2d at 196.

We conclude that the trial court correctly dismissed plaintiffs' third amended complaintagainst the CHA with respect to the CHA's alleged failure to provide police protection at theLeClaire Courts development.B. Discretionary Acts

In subparagraph 24B of plaintiffs' third amended complaint, plaintiffs alleged that the CHAwas liable on theories of both negligence and willful and wanton misconduct for "[f]ail[ing] to acton defendant [LCRMC]'s request for approval to hire a new private security firm for the LeClaireCourts before June 17, 1994." The trial court ruled that the CHA was immune from liability undersections 2-104 and 2-201 of the Tort Immunity Act. 745 ILCS 10/2-104, 2-201 (West 2000).

Section 2-104 states:

"A local public entity is not liable for an injury caused by the issuance, denial,suspension or revocation of, or by the failure or refusal to issue, deny, suspend orrevoke, any permit, license, certificate, approval, order or similar authorization wherethe entity or its employee is authorized by enactment to determine whether or notsuch authorization should be issued, denied, suspended or revoked." (Emphasisadded.) 745 ILCS 10/2-104 (West 2000).

We first note that section 2-104 contains no explicit exception for willful and wantonmisconduct. As we previously concluded with respect to section 4-102, section 2-104 immunitytherefore extends to willful and wanton misconduct as well as negligence. Chicago Flood, 176 Ill.2d at 196.

Plaintiffs dispute the applicability of section 2-104 immunity to the CHA, asserting that no"enactment" exists authorizing the CHA to approve or disapprove of the LCRMC's request forfunding. We disagree.

The term "enactment" is defined in the Tort Immunity Act as a "constitutional provision,statute, ordinance or regulation." 745 ILCS 10/1-203 (West 2000). The LCRMC was created as partof a HUD program to encourage tenant management of public housing developments. The Code ofFederal Regulations provides that "[t]he policies and procedures contained in this part apply to anyHA [Housing Authority] that has a Public Housing Annual Contributions Contract with HUD." 24C.F.R.