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No. 2--02--0985

Plaintiff, Board of Education of Indian Prairie SchoolDistrict No. 204 (Board), appeals an order of the circuit court ofDu Page County dismissing its complaint against defendants, Du PageCounty Election Commission (Commission), Dean Westrom, JeanneMcNamara, and Charlotte Mushow. Westrom, McNamara, and Mushow areelection commissioners and are sued solely in their officialcapacities. For the reasons that follow, we reverse and remandthis cause for further proceedings.

I. BACKGROUND

Plaintiff planned to construct a new elementary school and twonew middle schools, as well as make additions to some existingschool buildings. In order to fund these projects, plaintiffsought authority to issue bonds in the amount of $88,800,000 andincrease property taxes from 3.04% to 3.74%. It enactedresolutions directing the Commission to, inter alia, publish noticeof the election at least 10 days, but no more than 30 days, priorto the election as provided for in the Election Code (Code) (10ILCS 5/12--5 (West 2000)). Indian Prairie School Districtstretches through two counties. The Will County ElectionCommission published notice as requested; however, defendants didnot publish notice until five days before the election, on February22, 2001, and February 23, 2001. The election was held on February27, 2001. Both measures received a majority of the votes.

Plaintiff discovered the Commission's error in May 2001. Asa result, plaintiff's ability to secure necessary funds for itsconstruction projects was jeopardized. Plaintiff thus sought andobtained corrective legislation from the legislature. On June 7,2001, the Governor signed into effect an act that validated theelection. Plaintiff spent $55,870 securing this legislation.

In the action below, plaintiff sought to recoup theseexpenses. The trial court dismissed plaintiff's complaint pursuantto section 2--615 of the Civil Practice Law (735 ILCS 5/2--615(West 2002)), articulating two bases for its decision. First, thetrial court concluded that section 12--5 of the Code (10 ILCS 5/12--5 (West 2000)) did not create a duty on the part of the Commissionthat ran to a private party. Second, the court found that, sincethere had never been an action filed to void the results of thereferenda, plaintiff suffered no damages. As there were nodamages, the court reasoned, any amounts spent securing correctivelegislation were not spent in mitigation of damages. Plaintiffthen filed this timely appeal.

II. ANALYSIS

Plaintiff contends that the trial court erred in dismissingits complaint. Plaintiff first argues that, because it had aninterest distinct from that of the public as a whole, theCommission owed it a duty under the Code. Second, plaintiffcontends that whether any damages were proximately caused bydefendants' actions is a question of fact. Defendants contest bothissues and additionally argue that, even if plaintiff is correct onthese two points, any duty they owed was breached only if theirconduct was willful. Defendants then argue that plaintiff did notallege that their failure to publish timely notice was willful.

Because this cause comes to us following a dismissal pursuantto section 2--615 of the Civil Practice Law (735 ILCS 5/2--615(West 2002)), our review is de novo. Safeway Insurance Co. v.Daddono, 334 Ill. App. 3d 215, 218 (2002). All well-pleaded factsin plaintiff's complaint and all reasonable inferences capable ofbeing drawn therefrom must be taken as true, and the allegationmust be viewed in the light most favorable to plaintiff. Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A., 186 Ill. 2d472, 491 (1999). The ultimate question is, of course, whether thecomplaint states a cause of action, and the complaint should not bedismissed unless it is clear that plaintiff cannot prove any set offacts that would warrant relief. Board of Directors of BloomfieldClub Recreation Ass'n v. Hoffman Group, Inc., 186 Ill. 2d 419, 424(1999). Furthermore, the existence of a duty raises a question oflaw. Ziemba v. Mierzwa, 142 Ill. 2d 42, 47 (1991).

Finally, before turning to the particular issues raised by theparties, we note that defendants repeatedly quote plaintiff'spleadings in another case filed in Will County. Defendants callthese quotations admissions. Defendants do not, however, attemptto establish the elements of judicial estoppel (see People v.Coffin, 305 Ill. App. 3d 595, 598 (1999)) or otherwise explain whyplaintiffs should be bound by arguments made in a different case. Moreover, we note that, even within the context of a single case,pleading in the alternative is permissible. 735 ILCS 5/2-613(b)(West 2002). Accordingly, we attribute no weight to thesequotations.

A. Duty

The trial court dismissed plaintiff's complaint, in part,because it believed that the Code established no duty to plaintiffon defendants' part. In its oral ruling, the trial court statedthat it "was unable to find a single recorded case in the historyof Illinois where the negligence in following a statute gave riseto a cause of -- a duty owed to a private party." Accordingly, thecourt determined that no duty was owed to plaintiff. We disagree. The principle that the violation of a statute can form the basisfor a negligence action is well established in this state. See,e.g., Yates v. Shackelford, 336 Ill. App. 3d 796, 802 (2002);Illinois Bell Telephone Co. v. Plote, Inc., 334 Ill. App. 3d 796,805 (2002); Allstate Insurance Co. v. Winnebago County Fair Ass'n,Inc., 131 Ill. App. 3d 225, 232 (1985).

When dealing with the obligations of a public entity, specialconsiderations apply. A private cause of action may not be basedupon a statute if the duty imposed runs to the public generally. Arizzi v. City of Chicago, 201 Ill. App. 3d 368, 371 (1990). Instead, for a private action to lie, the entity must owe a duty tothe plaintiff distinct from any duty owed to the public as a whole. O'Fallon Development Co. v. City of O'Fallon, 43 Ill. App. 3d 348,358-59 (1976). Moreover, since the abolition of sovereign immunityin this state (see Walker v. Forest Preserve District of CookCounty, 27 Ill. 2d 538, 540 (1963)), the ratification of theConstitution of 1970, and the enactment of the Local Governmentaland Governmental Employees Tort Immunity Act (745 ILCS 10/1--101 etseq. (West 2000)), "governmental units are now liable in tort onthe same basis as private tortfeasors unless a valid statutedealing with tort immunity imposes conditions upon that liability." Harinek v. 161 North Clark Street Ltd. Partnership, 181 Ill. 2d335, 345 (1998). Parenthetically, we note that defendants do notaddress whether the Tort Immunity Act has any bearing on this case,and we therefore express no opinion on this issue.

In the present case, we hold that the statute at issue imposeda duty upon defendants for plaintiff's benefit in addition to anyduty that ran to the public as a whole. In Stradford v. Reinecke,6 Ill. App. 2d 537 (1955), the court considered whether an electionboard owed a duty to a candidate to preserve ballots for anelection contest. A provision of the Code stated that ballotsshall be preserved for two months, or, in the event of a contest,until it was resolved. See Ill. Rev. Stat. 1947, ch. 46, par. 17--20. The election board destroyed the ballots despite theplaintiff's contest of the election result. The defendants arguedthat any duty they had to preserve the ballots ran only to thepublic generally. The Stradford court first recognized that acandidate's interest in an election is "distinctly different fromthat of the public generally." Stradford, 6 Ill. App. 2d at 543. It recognized that, although the broad purpose of this provision ofthe Code was to safeguard to the people the right of suffrage, toprevent illegal voting, and to insure that the people's will wascarried out, it served a second purpose. Stradford, 6 Ill. App. 2dat 544. It also was intended to "furnish a new ground of contestto a defeated candidate." Stradford, 6 Ill. App. 2d at 544. Thus,Stradford teaches that a statute may serve multiple purposes, andwhere one of its purposes runs to an individual, that individualmay base a cause of action upon the statute.

Stradford provides sound guidance for the resolution of theissue before us. Undoubtedly, the primary purpose of section 12--5of the Code (10 ILCS 5/12--5 (West 2000)) is to ensure that thepublic is aware of an election. If this were the only purpose ofthe statute, defendants would owe plaintiff no duty. However, asthe Stradford court did with the statute before it, we perceive asecond purpose to section 12--5. It is part of the mechanismthrough which an entity submits an issue to the people for a vote. As such, when an entity, like plaintiff in the instant case, needsto accomplish something that requires the approval of the people,it must invoke the procedures set forth in the Code. One of thepurposes of the Code in general, and section 12--5 in particular,is to allow entities to submit things to the people for anelection. It is this purpose that gave plaintiff an interestdistinct from that of the public in general, which, in turn,creates a duty upon defendants' part that runs to plaintiff.

Furthermore, as noted above, absent a grant of immunity"governmental units are now liable in tort on the same basis asprivate tortfeasors." Harinek, 181 Ill. 2d at 345. Applyingtraditional principles of the law of torts, it is clear thatdefendant owed plaintiff a duty. Relevant factors in determiningwhether a duty exists are: "the reasonable foreseeability ofinjury, the likelihood of such injury, the magnitude of guardingagainst the injury, and the consequences of placing that burden onthe defendant." Washington v. City of Chicago, 188 Ill. 2d 235,239 (1999). The final three factors weigh heavily in favor ofimposing a duty. The likelihood of injury is relatively high. Itis true that "inconsequential mistakes and omissions of electionofficials in performing mandatory duties of a precautionary naturewill not invalidate the results of an election." Whitsell v.Davis, 67 Ill. App. 3d 962, 969 (1978). However, plaintiff'sinjury was not that the election was void; it was the threat thatthe election might have been invalidated, and the effect thisthreat had on plaintiff's ability to raise money and proceed withits construction projects. See 21 Ill. Jur. Municipalities