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Docket No. 86215-Agenda 14-November 1999.

AMERICAN NATIONAL BANK & TRUST COMPANY, 
Special Adm'r for the Estate of Renee Kazmierowski, Deceased,
Appellant, v. THE CITY OF CHICAGO et al., Appellees.

Opinion filed August 10, 2000.

JUSTICE MILLER delivered the opinion of the court:

The plaintiff, American National Bank and Trust Company,as special administrator of the estate of Renee Kazmierowski,brought the present action in the circuit court of Cook Countyagainst the defendants, the City of Chicago and two of itsparamedics, John Glennon and Kevin T. O'Malley. Raisingseveral theories of liability, the plaintiff sought recovery for thedefendants' alleged failure to respond properly to an emergencycall by the decedent for medical assistance. The circuit courtgranted the defendants' motion for dismissal of the complaint. Theappellate court affirmed that judgment in an unpublished order.No. 1-97-1212 (unpublished order under Supreme Court Rule23). We allowed the plaintiff's petition for leave to appeal (177 Ill.2d R. 315(a)), and we now affirm in part and reverse in part thejudgment of the appellate court and remand the cause to the circuitcourt for further proceedings.

The following factual summary is derived from the allegationsin the plaintiff's amended complaint and from the informationcontained in its accompanying exhibits, which include a transcriptof the decedent's emergency call and the paramedics' report. Ataround 7:55 a.m. on April 24, 1995, the decedent, ReneeKazmierowski, suffered an asthma attack while at home at herapartment in Chicago. She called 911 to request help. Sheprovided her address and telephone number and said that she livedon the third floor of the building. The 911 operator replied thatparamedics were on the way; the operator did not attempt to keepthe decedent on the telephone while the paramedics wereresponding to the call.

Two paramedics, John Glennon and Kevin T. O'Malley, weredirected to respond to what they were told was a "heart attack"victim. They were allowed into the decedent's apartment buildingby a neighbor in the building and went to the third floor. Theyasked the neighbor whether he had summoned help, and theneighbor replied that he had not. The paramedics then knocked onthe door of the only other apartment located on the third floor, butthey received no response. The neighbor escorted a firefighter,who had also responded to the call, through his apartment to theback of the building. The firefighter knocked on the back door, buthe received no response and was not able to see into the apartment.While the firefighter was checking the back of the building, theparamedics called the dispatcher, who confirmed that they were atthe correct address. In response to the paramedics' questions, thedispatcher also said that the caller had not provided her age, andthat an attempt to return the call had reached an answeringmachine. The neighbor told the paramedics that the apartment wasoccupied by a young couple, who did not appear to have anymedical problems. The paramedics concluded that they were notneeded at the address in question, and they left the scene. Thatafternoon, the same paramedics returned to the apartment, againin response to an emergency call. On this occasion, a man let theparamedics into the apartment, and they found the decedent lyingdead on the floor.

The plaintiff's amended complaint comprised a total of 11counts. These alleged negligence and willful and wantonmisconduct, and sought recovery from the City and the twoparamedics under the Wrongful Death Act and the Survival Act.An additional count sought to impose liability on the City under afederal civil rights provision. The complaint alleged that the 911operator acted negligently, willfully, and wantonly in failing tokeep decedent on the phone while the paramedics responded. Thecomplaint further alleged that the front door of decedent'sapartment was unlocked when the paramedics responded to hercall, and that the paramedics acted negligently, willfully, andwantonly in failing to try the unlocked door and enter theapartment.

The defendants moved to dismiss the amended complaintunder section 2-615 of the Code of Civil Procedure (735 ILCS5/2-615 (West 1994)). The defendants argued that they wereimmune from liability for the decedent's death under theEmergency Medical Services (EMS) Systems Act (EMS Act) (210ILCS 50/1 through 33 (West 1994)). The defendants furthercontended that the plaintiff had failed to adequately allege thatthey owed the decedent a special duty of care or engaged in willfuland wanton misconduct. The circuit court granted the defendants'motion, ruling that the defendants were immune from liabilityunder the EMS Act and that the plaintiff had failed to adequatelyallege a special duty or willful and wanton misconduct.

The appellate court affirmed the circuit court judgment in anunpublished order. No. 1-97-1212 (1998) (unpublished orderunder Supreme Court Rule 23). The appellate court rejected thedefendants' contention, raised for the first time on appeal, thatsection 5-101 of the Local Governmental and GovernmentalEmployees Tort Immunity Act (Tort Immunity Act) (745 ILCS10/5-101 (West 1994)) granted immunity to the defendants. Theappellate court concluded, however, that section 17 of the EMSAct (210 ILCS 50/17 (West 1994)) immunized the defendantsfrom liability for the decedent's death. The appellate court alsoheld that the plaintiff had failed to adequately allege that thedefendants owed the decedent a special duty or that their conductwas willful and wanton. We allowed the plaintiff's petition forleave to appeal. 177 Ill. 2d R. 315. We later granted leave to theIllinois Trial Lawyers Association and to the IllinoisGovernmental Association of Pools and the Illinois MunicipalLeague to submit briefs as amici curiae. 155 Ill. 2d R. 345. For thereasons that follow, we now affirm in part and reverse in part thejudgment of the appellate court, and we remand the cause to thecircuit court for further proceedings.

Before this court, the plaintiff does not challenge thedismissal of counts I, II, and XI of the amended complaint; countsI and II charged the City with negligence, and count XI alleged aviolation of the decedent's civil rights. Among the counts thatremain, counts III and IV allege willful and wanton misconduct bythe City for its failure to implement and enforce proper training forparamedics and for its failure to train and supervise theparamedics; count V seeks to recover from the City for itsvicarious liability for the willful and wanton misconduct of thetwo paramedics in this case. Counts VI, VII, VIII, and IX aredirected against paramedics Glennon and O'Malley; these countsallege negligence by the paramedics and seek recovery under theWrongful Death Act and the Survival Act. The final countremaining for our consideration is count X, which alleges willfuland wanton misconduct by the two paramedics.

A motion to dismiss brought pursuant to section 2-615 of theCode of Civil Procedure (735 ILCS 5/2-615 (West 1994)) attacksthe legal sufficiency of a complaint. In ruling on a section 2-615motion, a court must accept as true all well-pleaded facts in thecomplaint and all reasonable inferences that may be drawn fromthe complaint. The court is to interpret the allegations of thecomplaint in the light most favorable to the plaintiff. A cause ofaction should not be dismissed on the pleadings unless it clearlyappears that no set of facts can be proved under the pleadings thatwill entitle the plaintiff to recover. McGrath v. Fahey, 126 Ill. 2d78, 90 (1988).

The plaintiff initially argues that the defendants' section2-615 motion to dismiss should not have been considered by thetrial court because portions of the motion instead should have beenincluded in a motion brought under section 2-619 of the Code ofCivil Procedure (735 ILCS 5/2-619 (West 1994)), which permitsthe dismissal of an action because of certain affirmative defects ordefenses. We believe that the plaintiff has waived this objection,however, for the plaintiff failed to raise it in the circuit court. SeeHaudrich v. Howmedica, Inc., 169 Ill. 2d 525, 536 (1996). Wenow turn to the merits of the present appeal.

In support of the appellate court's and circuit court's rulings,the defendants contend that the present action is barred by theimmunity provision found in section 5-101 of the Tort ImmunityAct (745 ILCS 10/5-101 (West 1994)). The defendants did notraise this contention in the circuit court, but they argued the pointbefore the appellate court in support of the circuit judge'sfavorable ruling. The appellate court disagreed with thedefendants, who renew the contention before this court, arguingthat section 5-101 of the Tort Immunity Act applies to this caseand grants them immunity in these circumstances. Section 5-101provides:

"Neither a local public entity nor a public employee isliable for failure to establish a fire department orotherwise to provide fire protection, rescue or otheremergency service.

As used in this Article, 'rescue services' includes, butis not limited to, the operation of an ambulance as definedin the Emergency Medical Services (EMS) Systems Act."745 ILCS 10/5-101 (West 1994).

The appellate court ruled that section 5-101 providesimmunity "only where a public entity chooses not to provide anyfire protection, rescue or emergency services at all, and not wherea public entity offers these services in general but fails to providethem in a particular case." The defendants challenge the appellatecourt's interpretation, arguing that the statute immunizes a localpublic entity that establishes a rescue service but fails tocompetently use that service when summoned by a particularplaintiff. We do not agree.

We believe that section 5-101 immunizes only a local publicentity that has not established a fire department or rescue service,or has not instituted a system for otherwise providing fire or rescueservices. This result is clear from a reading of section 5-102,which immediately follows section 5-101. Section 5-102immunizes "a local public entity that has undertaken to providefire protection service" from liability for injuries "resulting fromthe failure to suppress or contain a fire." 745 ILCS 10/5-102(West 1994). Because section 5-102 applies to municipalities thathave "undertaken to provide" fire protection service, it was clearlymeant to contrast with section 5-101, which governsmunicipalities that have not undertaken to provide such service.Further support for this interpretation comes from section 5-101itself, which defines "rescue services" as including the "operationof an ambulance." 745 ILCS 10/5-101 (West 1994). Under section5-101, public entities that have not provided for the "operation ofan ambulance" are thus immune from liability for that omission,while public entities that do provide for the "operation of anambulance" are not covered by the statute-they are covered by theprovisions of the EMS Act instead. Because the complaint in theinstant case alleged that the City of Chicago has established asystem for providing emergency rescue services, section 5-101does not apply in these circumstances.

We next consider the provisions of the EMS Act and theimmunity afforded by it. As an initial matter, the plaintiff arguesthat the provision is not applicable at all to this case. At the timeof the decedent's death, in April 1995, section 17(a) of the EMSAct provided as follows:

"Any person, agency or governmental body licensed orauthorized pursuant to this Act or its rules, who in goodfaith provides life support services during a Departmentapproved training course, in the normal course ofconducting their duties, or in an emergency shall not becivilly or criminally liable as a result of their acts oromissions in providing those services unless the acts oromissions, including the bypassing of nearby hospitals ormedical facilities for the purpose of transporting a traumapatient to a designated trauma center in accordance withthe protocols developed pursuant to section 27 of this Act,are inconsistent with the persons's training or constitutewillful or wanton misconduct." 210 ILCS 50/17(a) (West1994).

Section 17(b) of the EMS Act similarly provided immunity foracts or omissions "in connection with administration, sponsorship,authorization, support, finance, or supervision of emergencymedical services personnel, where the act or omission occurs inconnection with their training or with services rendered outside ahospital unless the act or omission was the result of grossnegligence or willful misconduct." 210 ILCS 50/17(b) (West1994). We note that both provisions have been amended since thedecedent's death. The legislature has now omitted, from section17(a), the reference to acts or omissions "inconsistent with theperson's training," and has reformulated, in section 17(b), thestandard of non-immunized conduct to be that involving "willfuland wanton misconduct." See 210 ILCS 50/3.150(a), (b) (West1996). The parties agree that the operative provisions in this caseare the ones that were in force at the time of the decedent's death.

The plaintiff contends that section 17(a) applies only whenparamedics have actually rendered life support treatment to apatient; the plaintiff maintains that the failure of the respondingparamedics in this case to administer any treatment at all to thedecedent means that the provision has no application here. Insupport of this interpretation, the plaintiff cites the provisionsappearing in sections 4.02, 4.06, and 4.20 of the EMS Act, whichrespectively define the terms "Advanced Life Support-MobileIntensive Care Services," "Basic Life Support Services," and"Intermediate Life Support Services." 210 ILCS 50/4.02, 4.06,4.20 (West 1994). The plaintiff notes that each of these levels oflife support treatment involves the performance of acts orprocedures directly involving patient care. The plaintiff thusconstrues these definitions as signifying that the reference to lifesupport services in the immunity provision of section 17(a) mustrefer to the actual rendition of medical treatment, and not to theconduct at issue in this case, in which no treatment was everadministered.

We do not believe that the scope of section 17(a) is as narrowas the plaintiff believes it to be. We conclude that the provisionapplies to this case, even though the acts and omissions allegedhere do not relate to the actual rendition of life support treatment.Although the EMS Act does not define the general term "lifesupport services," we do not believe that we are limited, ininterpreting section 17(a), by the specialized meanings assigned tothe terms "advanced life support-mobile intensive care services,""basic life support services," and "intermediate life supportservices." Those definitions are designed to distinguish one levelor form of care from another, and the legislature could reasonablyhave decided to omit from the definitions conduct that is commonto them all or, though preparatory to the actual rendering ofmedical care, is no less an integral part of providing life supportservices. Moreover, section 17(a) also refers to the transportationof patients. If transporting a patient to a hospital is an aspect of lifesupport services, then so too should locating a patient in the firstplace. Other provisions in the EMS Act also demonstrate that theimmunity provisions of section 17 apply in these circumstances.Elsewhere, the Act regulates matters such as communications,response time, and standards for ambulance operation. 210 ILCS50/7, 7.1, 9 (West 1994). These additional measures are evidenceof the Act's broad scope, and of the equally broad meaning webelieve must be given to the term "life support services" in theimmunity provisions.

The parties also dispute the scope of the immunity providedby section 17(a) of the EMS Act. That provision, by its terms,affords immunity to two distinct types of activity: conduct that is"inconsistent with the person's training" as a paramedic, andconduct that is willful and wanton. The parties do not agree on thereach of the former category, involving conduct that is"inconsistent with the person's training." The plaintiff insists thatthe provision does not afford immunity for conduct that is contraryto or violates training received by a paramedic. The defendants, incontrast, construe this exception more narrowly, contending thatit withholds immunity merely for conduct that is beyond the levelof a paramedic's training; the defendants maintain that theprovision otherwise provides complete immunity for negligence.

We agree with the defendants' interpretation. We believe thatthis portion of section 17(a) means that conduct that is beyond thelevel of a paramedic's training is not immunized, while conductthat merely deviates from a paramedic's training and constitutesnegligence is subject to immunity. The appellate court has adoptedthis interpretation in a series of cases. Bowden v. Cary FireProtection District, 304 Ill. App. 3d 274, 280 (1999); Brock v.Anderson Road Ass'n, 287 Ill. App. 3d 16, 23-24 (1997); Gleasonv. Village of Peoria Heights, 207 Ill. App. 3d 185, 188-89 (1990).We believe that that construction of the statutory language bettereffectuates the legislative intent. Under the plaintiff's broadreading, which would withhold immunity for conduct that violatesa person's training, the exception would threaten to supplant theimmunity rule, for virtually any negligent act could be said to beinconsistent with or in violation of a person's training. Theplaintiff has not alleged that the actions of the paramedics werebeyond their level of training, and therefore we conclude thatsection 17(a) operates to immunize them for their conduct, unlessit rises to the level of willful and wanton misconduct.

We next consider whether the plaintiff's amended complaintsufficiently alleges willful and wanton misconduct. The circuitcourt believed that the allegations were merely conclusory, and theappellate court agreed. The defendants argue that the lower courts'determinations were correct.

It is the plaintiff's duty to sufficiently allege conduct that fallswithin the scope of a recognized cause of action. Moreover, mereconclusory allegations are not sufficient. We believe, however,that the allegations contained in the plaintiff's amended complaintare sufficient to withstand the defendants' motion to dismiss.

This court has previously defined "willful and wantonmisconduct" in the following terms:

" 'A wilful or wanton injury must have been intentionalor the act must have been committed under circumstancesexhibiting a reckless disregard for the safety of others,such as a failure, after knowledge of impending danger, toexercise ordinary care to prevent it or a failure to discoverthe danger through recklessness or carelessness when itcould have been discovered by the exercise of ordinarycare.' "  Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267, 273(1994), quoting Schneiderman v. Interstate Transit Lines,Inc., 394 Ill. 569, 583 (1946).

We believe that the allegations in the plaintiff's amendedcomplaint are sufficient, creating a question for the trier of fact todetermine whether the defendants' conduct was willful andwanton. According to the complaint, the decedent, ReneeKazmierowski, called 911 on the morning of April 24, 1995, andrequested help, explaining that she was having an asthma attack.She provided her address and telephone number and said whatfloor she lived on. She also told the dispatcher, "I think I'm goingto die. Hurry." The dispatcher did not attempt to keep Renee onthe line, however, as required by applicable standards.

Moreover, according to the allegations in the plaintiff'samended complaint, paramedics routinely receive instruction onhow to respond to calls and, in particular, on how to locate personsin need of emergency medical treatment. The plaintiff alleges thattraining given to paramedics in Chicago, like training given toparamedics everywhere else, includes the following:

"[I]nstruction, training and enforcement of the standard'Try Before You Pry' which dictates that firefighters,paramedics and other rescue personnel should alwaysattempt to open a shut door by turning the door knobbefore engaging in destructive methods to gain access, orbefore exiting the scene altogether, without gaining accessin order to ensure delivery of emergency health careservices to the critically ill caller."

In the present case, the victim's door was unlocked. If theparamedics had been following these vital and basic precepts oftheir training, as alleged, they would have found the victim insidethe residence, and perhaps then they could have saved her life.Locating a person in need of emergency medical treatment is thefirst step in providing life support services. Not even that first stepwas taken here. We believe that the portions of the amendedcomplaint that allege willful and wanton misconduct by thedefendants are sufficient to withstand the defendants' motion todismiss, and we therefore remand the action to the circuit court forfurther proceedings.

For the reasons stated, the judgment of the appellate court,affirmed the judgment of the circuit court of Cook County, isaffirmed in part and reversed in part, and the cause is remanded tothe circuit court of Cook County for further proceedings.

Affirmed in part and reversed in part;

cause remanded.

JUSTICE HEIPLE, dissenting:

On April 24, 1995, Renee Kazmierowski (decedent) sufferedan asthma attack at her apartment in Chicago. Decedent called 911and stated: "I need help. I'm having an asthma attack. I think I'mgoing to die. Please hurry." The 911 operator told decedent thatparamedics were on the way, but failed to keep decedent on thephone while the paramedics were responding. When the defendantparamedics arrived at the reporting apartment, they knocked loudlybut received no response. A next-door neighbor escorted one ofthe responding officers through his apartment to check the backdoor of the reporting apartment, but the officer received noresponse there either. The neighbor told the paramedics that in theapartment lived a young couple who appeared to have no medicalproblems. The paramedics called the dispatcher, who confirmedthat they were at the correct address. Concluding that there was noindication that they were needed at the address, the paramedicsreported back in service. Later that day, the defendant paramedicswere again called to the same apartment. This time, a man let theminto the apartment and showed them on the floor the dead body ofhis girlfriend, who had died of an asthma attack.

The majority holds that the complaint filed by theadministrator of decedent's estate adequately alleged willful andwanton misconduct under section 17(a) of the Emergency MedicalServices (EMS) Systems Act (EMS Act) (210 ILCS 50/17(a)(West 1994)). Contrary to the majority's holding, this statutorysection does not even apply to this case.

Section 17(a) states that a person who "provides life supportservices" shall not be liable for the results of their acts oromissions unless those acts or omissions are "inconsistent with theperson's training or constitute willful or wanton misconduct." 210ILCS 50/17(a) (West 1994). The majority errs in holding that thedefendants in this case provided life support services within themeaning of the statute. The statute defines life support services as"emergency medical care," and lists as examples of such services"airway management, cardiopulmonary resuscitation, control ofshock and bleeding and splinting of fractures." 210 ILCS 50/4.02,4.06, 4.20 (West 1994). According to the allegations of thecomplaint, the defendant paramedics provided no life supportservices to the decedent. Although the 911 dispatcher promised toprovide such services, the services were never provided becausethe paramedics did not locate the decedent. The majority seems tobelieve that because the statute applies to the transportation ofpatients, it necessarily applies to the locating of patients as well.There is absolutely nothing in the statute to support such a reading.Defendants never even began to provide life support services,because they did not even see the patient. Because the statuteimmunizes only "acts or omissions in providing [life support]services," the statute does not apply to any acts or omissions of theinstant defendants, whether willful and wanton or otherwise. 210ILCS 50/17(a) (West 1994).

The City argues, however, that even if this immunity statutedoes not apply, it is still immune from liability in the instant caseunder the common law "public duty" rule. The public duty ruleprevents units of local government from being held liable for theirfailure to provide adequate governmental services such as policeand fire protection. Harinek v. 161 North Clark Street Ltd.Partnership, 181 Ill. 2d 335, 345 (1998); Leone v. City ofChicago, 156 Ill. 2d 33, 37 (1993); Burdinie v. Village of GlendaleHeights, 139 Ill. 2d 501, 509 (1990). The rationale for the rule isthat the duty of government to provide such protective services isowed to the public at large and therefore takes precedence overany duty owed to a particular plaintiff. Zimmerman v. Village ofSkokie, 183 Ill. 2d 30, 44 (1998); Harinek, 181 Ill. 2d at 345. Thepublic duty rule exists independently of any statutory immunitiesand notwithstanding the abolition in Illinois of common lawsovereign immunity. Zimmerman, 183 Ill. 2d at 45-46; Harinek,181 Ill. 2d at 345, 347; Huey v. Town of Cicero, 41 Ill. 2d 361, 363(1968). Under the public duty rule, then, the City is presumptivelyimmune from liability for its failure to promptly locate and treatthe decedent.

This court has recognized, however, an exception to thepublic duty rule known as the "special duty" doctrine. Under thisdoctrine, a municipality may be held liable for its failure toprovide adequate governmental services if the legislature has notgranted immunity to the municipality. Harinek, 181 Ill. 2d at 347.To invoke the special duty doctrine, a plaintiff must prove thefollowing elements:

(1) that the municipality was uniquely aware of theparticular danger or risk to which the plaintiff wasexposed;

(2) that the municipality engaged in specific acts oromissions that were affirmative or willful in nature; and

(3) that the injury occurred while the plaintiff was underthe direct and immediate control of municipal employeesor agents.

See Leone, 156 Ill. 2d at 37; Burdinie, 139 Ill. 2d at 508. Forexample, in Leone v. City of Chicago, 156 Ill. 2d 33 (1993), thiscourt found a special duty where a police officer directed theplaintiff to stand between her car and his police car, which wasthen struck from behind, injuring her.

Assuming arguendo that the complaint in the instant casesatisfies the first of the requirements for a special duty, I wouldhold that it fails to satisfy the remaining elements. The complaintfails to establish that the City or its employees engaged inaffirmative or willful acts or omissions in connection withdecedent's death. The complaint simply alleges that the 911dispatcher failed to keep decedent on the phone while theparamedics were responding and that the paramedics failed to trythe doorknob in order to enter decedent's apartment. At most,these allegations show that the city employees neglected toperform certain tasks. There is no indication of a consciousdecision by the employees not to perform the tasks. Rather, theemployees attempted to locate decedent but neglected to try thedoorknob to gain entry to her dwelling. This conduct was neitheraffirmative nor willful.

Furthermore, the complaint fails to adequately allege thatdecedent was under the direct and immediate control of the City.Although decedent called 911 for assistance, the paramedics hadnot located her and were not physically in her presence at the timeof her death. In Doe v. Calumet City, 161 Ill. 2d 374 (1994), thiscourt refused to find a special duty where police officers failed toenter an apartment to prevent a violent crime that was occurring.Doe, 161 Ill. 2d at 387. We held that because the officers had notinitiated the circumstances that brought harm to the victims, thevictims were not under the officers' direct and immediate control.Doe, 161 Ill. 2d at 387. Similarly, in the instant case the City hadno part in initiating the harm that befell decedent. Although thecomplaint may establish that the City employees performed theirduties incompetently, it fails to establish that they owed decedenta special duty. The public duty rule therefore immunizes the Cityfrom liability for her death.

For these reasons, I respectfully dissent.

JUSTICES BILANDIC and RATHJE join in this dissent.