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Fender v. Town of Cicero

Case Date: 03/16/2004
Court: 1st District Appellate
Docket No: 1-02-0950, 1-02-3545 cons. Rel

SECOND DIVISION
March 16, 2004



Nos. 1-02-0950 and 1-02-3545, Consolidated
   
SANDRA FENDER AND FRANK FENDER, Indiv. and
as Parents and Next Friend of Matty Fender, a Minor,

          Plaintiffs-Appellants,

                    v.

THE TOWN OF CICERO, a Municipal Corporation; JOHN
DOE(S), the Town of Cicero Police Officers;
WALDEMAR A. CRUZ, Indiv. and as Agent and/or
Employee of the Town of Cicero; LOUIS G. MAZZA,
Indiv., and as Agent and/or Employee of the Town of
Cicero; JERRY A. SIMEK, Indiv., and as Agent and/or
Employee of the Town of Cicero,

          Defendants-Appellees.

COLLEEN M. POULL, as Special Adm'r of the Estates of
Kevin Christopher Poull, Charissa Marie Poull, Shawn
Anthony Poull, William John Poull, and Stephanie Marie
Martin, Deceased Minors,

          Plaintiff-Appellant,

          v.

THE TOWN OF CICERO, a Municipal Corporation,

          Defendant-Appellee

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)		 Appeal from
the Circuit Court
of Cook County




No. 01 L 6405





Honorable
David R. Donnersberger,
Judge Presiding.
 

Appeal from
the Circuit Court
of Cook County


No. 01 L 6402



Honorable
Jennifer Duncan Brice,
Judge Presiding.

JUSTICE CAHILL delivered the opinion of the court:

Plaintiffs Sandra Fender, Frank Fender and Colleen M. Poull appeal from the dismissals oftheir complaints against the Town of Cicero (Cicero) and Cicero police officers, including JohnDoe(s), Waldemar A. Cruz, Louis G. Mazza and Jerry A. Simek, for negligence in failing torescue the victims of a residential fire. Defendants argued, and the trial court agreed, that thecomplaints must be dismissed because defendants were immune from liability under the LocalGovernmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/1-101 etseq. (West 2000)). We affirm.

On September 15, 1997, an arson fire at Poull's home, 2322 S. 61th Avenue, Cicero,resulted in the deaths Poull's five children Kevin, Charissa, Shawn and William Poull andStephanie Martin. The Fenders and their daughter Matty, who apparently were visiting the Poullhome at the time of the fire, suffered injuries from exposure to flames and smoke. The firstemergency personnel at the scene were Cicero police officers, including Cruz, Mazza and Simek.

The Fenders and Poull filed complaints against the Town of Cicero and the individualpolice officers, alleging negligence for the failure of the officers to attempt a rescue when theyknew victims were trapped inside the building. Plaintiffs argued that although Cicero had trainedand equipped the police officers to respond to fire emergencies as "public safety officers," theofficers did not attempt a rescue. In contending that Cicero held out its police officers to thepublic as being prepared for fire emergencies, plaintiffs relied on language in a Cicero townhandbook, which is not of record. Plaintiffs asserted that Cicero led its citizens to believe that ithad instituted a program of extended emergency training for police officers and firemen, and oncehaving voluntarily undertaken such a program, the town should have ensured that the officerswould attempt a rescue.

In general, municipalities are liable in tort to the same extent as private parties unless animmunity provision applies under the Act (745 ILCS 10/1-101 et seq. (West 2000)). Van Meterv. Darien Park District, 207 Ill. 2d 359, 368-69, 799 N.E.2d 273 (2003). The Act "governswhether and in what situations local governmental units are immune from civil liability." Harrisonv. 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 officialdiscretion, should be allowed to exercise their judgment without fear that a mistake made in goodfaith might subject them to lawsuit. Harrison, 197 Ill. 2d at 472.

The sections of the Act that are relevant to the plaintiffs' claims are: "