                                     2018 IL App (1st) 170205

                                                                               FIRST DIVISION
                                                                               June 18, 2018

                                            No. 1-17-0205


                                          IN THE
                                APPELLATE COURT OF ILLINOIS
                                      FIRST DISTRICT


 MARGARET CAROLAN, as Independent Executor of                    )          Appeal from the
 the ESTATE OF MICHAEL J. NORTON, deceased, and                  )          Circuit Court of
 BRITTANY NORTON,                                                )          Cook County
                                                                 )
           Plaintiffs-Appellants,                                )
                                                                 )
 v.                                                              )          No. 16 L 4331
                                                                 )
 THE CITY OF CHICAGO, a Municipal Corporation,                   )
 and OFFICE OF EMERGENCY MANAGEMENT &                            )
 COMMUNICATIONS, a Department of the City of                     )
 Chicago,                                                        )
                                                                 )
           Defendants,                                           )          The Honorable
                                                                 )          Daniel T. Gillespie,
 (City of Chicago, Defendant-Appellee).                          )          Judge Presiding.


       PRESIDING JUSTICE PIERCE delivered the judgment of the court, with opinion.
       Justices Harris and Mikva concurred in the judgment and opinion.

                                              OPINION

¶1     Plaintiffs Margaret Carolan, as independent executor of the estate of Michael J. Norton,

deceased, and Brittany Norton, the decedent’s daughter (collectively, plaintiffs), sued the City of

Chicago (City) and the Office of Emergency Management and Communications (OEMC) 1 to



       1
         In the circuit court, the City argued that OEMC was not a suable entity because “it is merely a
division of the City of Chicago, with no independent legal existence.” Plaintiffs did not advance any
argument in response to the City’s position. The circuit court agreed with the city and dismissed OEMC
No. 1-17-0205


recover damages for the death of Michael J. Norton. Plaintiffs alleged that, in May 2009,

defendants failed to timely dispatch police in response to a 911 call reporting an armed robbery

in progress at Norton’s convenience store and that Norton was shot and killed less than two

minutes before police arrived. The circuit court granted summary judgment in favor of the City

on the basis that the City was immune under the Local Governmental and Governmental

Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/4-102 (West 2008)), that the

City did not owe Norton any duty, and that plaintiffs could not establish either proximate cause

or that the City engaged in willful and wanton misconduct. For the following reasons, we affirm.

¶2                                       BACKGROUND

¶3      In the evening of May 14, 2009, Norton was working in the convenience store he owned

at 4759 West North Avenue, Chicago, Illinois, located on the first floor of an apartment building

that he owned and operated. Several people entered the store, including one wearing a ski mask

and armed with a gun. A passerby saw someone wearing a ski mask inside Norton’s store and

called 911. OEMC received the 911 call at 7:12 p.m. The passerby placed a second 911 call that

OEMC received at 7:17 p.m. At 7:20 p.m., a police unit was dispatched to the scene. Three

additional units were dispatched within the next two minutes, and additional units were

dispatched thereafter. When police arrived at Norton’s store, they found Norton tied up inside a

storage area with a gunshot wound to the head. Medical personnel pronounced Norton dead at

the scene. 2

¶4      Plaintiffs initiated this action 2010 and filed an amended complaint in June 2012. The

parties engaged in discovery and the case was set for trial. Plaintiffs voluntarily dismissed their


as a defendant. Plaintiffs raise no argument on appeal as to whether OEMC is a suable entity, and we
therefore treat the city as the only proper defendant.
         2
           Beatrice Rosado, who was a tenant in Norton’s building, and her boyfriend Elvin Payton were
identified as the offenders and both later pleaded guilty to killing Norton.
                                                  2
No. 1-17-0205


complaint on the eve of trial and timely refiled their complaint in April 2016. The refiled

complaint alleged that Norton was shot and killed two minutes before police arrived on the scene

and that the failure to dispatch police to an armed robbery in progress until eight minutes after

the initial 911 call was “willful and wonton” and “demonstrated a reckless disregard” for

Norton’s welfare. The refiled complaint asserted wrongful death and survival claims on behalf of

Norton’s estate and a loss of society claim on behalf of Brittany.

¶5     The City moved for summary judgment. The City argued, in relevant part, that under

section 4-102 of the Tort Immunity Act, it was immune from any liability for failing to prevent

Norton’s death, failing to provide adequate police protection or services, or failing to make

arrests. Id. The City further argued that it did not owe Norton any common law duty to protect

him from a third party attack. Furthermore, the City argued that there was no genuine issue of

material fact as to proximate cause because Norton’s death was due to a criminal act by a third

party and plaintiff could only speculate as to whether an earlier dispatch of police to the scene

would have prevented Norton’s death. The City’s motion was fully briefed, and we summarize

the evidence submitted by the parties in connection with the City’s motion for summary

judgment.

¶6     Erin Hansen testified at her deposition that she was the supervisor of investigations for

OEMC. She explained that when a 911 call is received, a communications operator obtains the

relevant information from the caller and inputs data into a computer aided dispatch (CAD)

system. The communications operator then electronically transmits the CAD data to the

appropriate police dispatcher, who then assigns field units to the call. For ongoing situations such

as a robbery in progress, an operations supervisor follows up on the dispatch functions and

monitors the situation. Each 911 call is assigned an event number, event type, and priority level



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No. 1-17-0205


by either the communications operator or the dispatcher. There are five priority levels. Priority 1,

the highest civilian priority level, indicates a threat to life and includes acts that are in progress

that could result in significant loss or damage to property where an arrest could be effectuated.

Level 1 contains subcategories A through D, with subcategory A indicating the highest ranking.

¶7     Hansen explained that, here, the initial 911 call was received by OEMC at 7:11:57 and

was logged by OEMC at 7:12:30 p.m. The call was coded as a “ROBIP,” indicating a robbery in

progress; was assigned priority level 1A; and was transferred to the appropriate dispatcher. The

second 911 call was received at 7:17:19 p.m. and logged at 7:21:23 p.m. OEMC standards

provide that a priority 1A call be dispatched within 10 minutes of the call being received.

Between 7:20:41 p.m. and 7:21:03 p.m., the dispatcher dispatched four units to 4759 West North

Avenue. Hansen could not say for certain why units were not dispatched sooner, but Hansen

explained that on May 14, 2009, between 2:50 p.m. and 10:23 p.m., District 25 (which includes

4759 West North Avenue) was under a “radio assignments pending” (RAP), meaning there were

more events pending than field units available. Hansen could not be certain that there were

actually more events pending than units available but stated that the most likely reason for the

eight minute dispatch time was that no units were available for immediate dispatch. OEMC

records did not reflect what activities the units that ultimately responded were engaged in prior to

being dispatched to 4759 West North Avenue.

¶8     On December 29, 2016, the circuit court entered a written order, granting summary

judgment in favor of the City. The circuit court concluded that a 911 operator’s alleged failure to

timely transmit a 911 request was a failure to provide adequate police protection and therefore

fell within the immunity provision of section 4-102 of the Tort Immunity Act. See id. The circuit

court further concluded that the City’s conduct was not willful and wanton because the conduct



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No. 1-17-0205


alleged “could be, at most, characterized as inadvertence or incompetence.” The circuit court

noted that all available police units were on assignment at the time of the initial 911 call and that

police were dispatched within 8 minutes of the initial call, which was within the 10 minute

OEMC internal standard. Furthermore, the circuit court concluded that the City did not owe

Norton any common law duty to protect him against attacks by a third party because Norton and

the City did not stand in any recognized special relationship. Finally, the circuit court found that

plaintiffs could not establish proximate cause because the legal cause of Norton’s death was the

independent criminal act of a third party and legal cause is not established where the alleged

negligence only creates a condition that allowed the injury to be possible. Plaintiffs filed a timely

notice of appeal.

¶9                                          ANALYSIS

¶ 10   On appeal, plaintiffs argue that the City is not entitled to immunity under section 4-102 of

the Tort Immunity Act. Plaintiffs contend that the circuit court misconstrued their claims because

“[t]his case is not about what the police did or did not do, it is about the failure of 911 to dispatch

police pursuant to an emergency call.” Plaintiffs argue our legislature intended the Emergency

Telephone System Act (50 ILCS 750/15.1 (West 2008)) to govern immunity for the actions of

emergency dispatchers because it is the more recently enacted and specific legislative

pronouncement. Plaintiffs further argue that the circuit court erred in finding that plaintiffs could

not establish willful or wanton misconduct or proximate cause and that the City did not owe

Norton a duty.

¶ 11   Summary judgment is appropriate if the pleadings, depositions, affidavits, and other

admissions on file establish that there is no genuine issue of material fact and that the moving

party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2016); Cohen v.



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No. 1-17-0205


Chicago Park District, 2017 IL 121800, ¶ 17. The purpose of summary judgment is not to try a

question of fact, but rather to determine whether one exists. Robidoux v. Oliphant, 201 Ill. 2d

324, 335 (2002). “In determining whether a genuine issue of material fact exists, the court must

construe the pleadings, depositions, admissions, and affidavits strictly against the movant and

liberally in favor of the nonmovant.” West Bend Mutual Insurance Co. v. DJW-Ridgeway

Building Consultants, Inc., 2015 IL App (2d) 140441, ¶ 20. A party moving for summary

judgment bears the initial burden of production and may satisfy it by either showing that some

element of the case must be resolved in its favor or that there is an absence of evidence to

support the nonmoving party’s case. Nedzvekas v. Fung, 374 Ill. App. 3d 618, 624 (2007). Once

the moving party satisfies that initial burden, the burden shifts to the nonmoving party to come

forward with some factual basis that would entitle it to a favorable judgment. Id. We review a

circuit court’s ruling on summary judgment de novo. Standard Mutual Insurance Co. v. Lay,

2013 IL 114617, ¶ 15.

¶ 12   Plaintiffs contend that section 4-102 of the Tort Immunity Act does not apply here

because their claims do not allege any failure to provide adequate police protection. Plaintiffs

further argue that even if section 4-102 of the Tort Immunity Act could apply, section 15.1 of the

Emergency Telephone System Act provides the “controlling immunity” because it is the more

specific immunity. We find that section 4-102 of the Tort Immunity Act does apply based on our

supreme court’s decision in DeSmet v. County of Rock Island, 219 Ill. 2d 497 (2006).

¶ 13   Section 4-102 of the Tort Immunity Act 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



                                                 6
No. 1-17-0205


                protection or service, failure to prevent the commission of crimes, failure to detect

                or solve crimes, and failure to identify or apprehend criminals. This immunity is

                not waived by a contract for private security service, but cannot be transferred to

                any non-public entity or employee.” 745 ILCS 10/4-102 (West 2008).

¶ 14   In DeSmet, the plaintiff sued numerous governmental entities and government employees

to recover damages for the death of Doris Hays. Hays was driving her automobile near the

county line between Rock Island County and Henry County when her car left the road and ran

into a ditch. DeSmet, 219 Ill. 2d at 500. A passing motorist observed Hays’s car leave the road

and called the clerk of the Village of Orion, Illinois, to report what she saw including the

location of the accident. Id. at 500-01. The village clerk contacted a dispatcher for Henry

County, who in turn contacted the dispatcher for the City of Moline and the City of East Moline,

who in turn contacted the sheriff’s department for Rock Island County. Id. at 501. No emergency

services, however, were dispatched to the scene of the accident. Id. at 502. Three days later,

Hays’s body was found lying outside her vehicle at the scene of the accident. Id. Plaintiff filed a

complaint, asserting wrongful death and survival claims against Rock Island County, Henry

County, the Village of Orion, the City of Moline, the City of East Moline, and several

individuals in their official capacities. Id. at 502-03. The circuit court dismissed the plaintiff’s

complaint with prejudice, finding that the defendants were immune from tort liability under

section 4-102 of the Tort Immunity Act. Id. at 503. We affirmed the judgment of the circuit

court. Id. at 503-04.

¶ 15   Our supreme court affirmed. The court agreed with several appellate panels that section

4-102 is implicated where “the assistance required *** falls within the statutory umbrella of

‘police protection services.’ ” Id. at 512 (citing McElmeel v. Village of Hoffman Estates, 359 Ill.



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No. 1-17-0205


App. 3d 824, 827-29 (2005), and Kavanaugh v. Midwest Club, Inc., 164 Ill. App. 3d 213, 221

(1987)). The court rejected the plaintiff’s argument that the defendants’ failure to respond to an

emergency call was the equivalent of failing to provide any police services, finding that the

“governmental defendants rendered police protection service to the general public via their

dispatch centers.” Id. at 513. The court further rejected the plaintiff’s argument that Doe v.

Calumet City, 161 Ill. 2d 374 (1994), recognized a willful and wanton exception to section 4-

102. The DeSmet court first observed that Doe’s holding was overruled sub silentio by

Zimmerman v. Village of Skokie, 183 Ill. 2d 30 (1998), 3 and further held that Doe addressed a

situation where a police officer’s “outrageous conduct” was governed by section 2-202 of the

Tort Immunity Act (745 ILCS 10/2-202 (West 2002)), due to that officer’s control over a crime

scene. DeSmet, 219 Ill. 2d at 515, 518-19 (citing Doe, 161 Ill. 2d at 390-91). The DeSmet court

observed that Doe involved a situation where police had responded to an emergency call,

whereas the defendants in DeSmet did not respond at all. Id. at 520. The court stated:

                “Where no officers respond to the scene—whether it is because no police

                protection services are provided or because the services provided prove to be

                inadequate—the status quo ante is at least not altered to the detriment of those

                present. We believe that to be the reasoning behind the legislature’s enactment of

                section 4-102 of the Tort Immunity Act.” Id. at 521.

¶ 16   The court concluded:

                “Although we firmly believe that citizens have a right to expect the police to

                respond in a situation like this, the issue here is whether section 4-102 of the Tort

                Immunity Act immunizes the defendants from liability and the consequent


       3
        Zimmerman was expressly abrogated in Coleman v. East Joliet Fire Protection District, 2016 IL
117952, which abolished the public duty rule and special duty exception.
                                                  8
No. 1-17-0205


                  payment of public funds in satisfaction of an individual’s damage claims.

                  [Citation.] Section 4-102 immunity applies in this case.” Id. at 522.

¶ 17   Here, similar to the situation in DeSmet, a passerby called 911 to report an emergency

situation and the City failed to dispatch police in response to the first emergency call. Under

these circumstances, the assistance required of the City’s 911 service—a police response to a

crime in progress—clearly falls within section 4-102’s “police protection services.” Under the

holding of DeSmet, we conclude that section 4-102 of the Tort Immunity Act provides immunity

to the City for any failure to provide police protection services or for any inadequate provision of

those services.

¶ 18   Plaintiffs contend, however, that even if section 4-102 could apply, section 15.1 of the

Emergency Telephone System Act should control because it is the more specific immunity.

Plaintiffs rely on plain language of section 15.1 of the Emergency Telephone System Act, a

federal district court decision in Harrell v. City of Chicago Heights, Illinois, 945 F. Supp. 1112

(N.D. Ill. 1996), and our supreme court’s decision in Coleman, 2016 IL 117952, to argue that

section 15.1 applies.

¶ 19   At the outset, we observe that plaintiffs’ brief incorrectly asserts that

                  “The plain language of 50 ILCS 750/15.1, as it existed at all relevant times,

       provided that a ‘unit of local government assuming the duties of an emergency telephone

       system board,’ such as the [OEMC], would not be liable for civil damages ‘that directly

       or indirectly results from, or is caused by, any act or omission in the *** operation,

       maintenance, performance, or provision of 9-1-1 service required by this Act, unless the

       act or omission constitutes gross negligence, recklessness, or intentional misconduct.’ 50

       ILCS 750/15.1 (2017) [sic].”



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No. 1-17-0205


¶ 20   As the City correctly observes in its brief, however, the version of section 15.1 of the

Emergency Telephone System Act cited by plaintiffs did not become effective until January 1,

2016, when our legislature enacted Public Act 99-6, which was well after the events in question.

See Pub. Act 99-6, § 2-10 (eff. Jan. 1, 2016) (amending 50 ILCS 750/15.1). Plaintiffs made no

argument in the circuit court—and develop no argument on appeal—that the 2016 legislative

amendments apply to this case, nor did plaintiffs file a reply brief in this court to address their

reliance on the amended version of the statute. Plaintiffs have forfeited any contention that the

2016 amendments apply retroactively, and therefore we will rely on the version of section 15.1

that was in effect in May 2009, which provided, in relevant part:

       “No public agency *** or unit of local government assuming the duties of an emergency

       telephone system board, nor any officer, agent or employee of any public agency *** or

       unit of local government assuming the duties of an emergency telephone system board,

       shall be liable for any civil damages as a result of any act or omission, except willful or

       wanton misconduct, in connection with developing, adopting, operating or implementing

       any plan or system required by this Act.” 50 ILCS 750/15.1 (West 2008).

Whereas section 4-102 of the Tort Immunity Act contains no exception for willful and wanton

conduct (DeSmet, 219 Ill. 2d at 515), section 15.1 of the Emergency Telephone System Act

expressly permitted for civil liability based on willful or wanton misconduct (50 ILCS 750/15.1

(West 2008)).

¶ 21   Plaintiffs make little effort to explain how a tort claim for damages based on an alleged

willful or wanton failure to promptly dispatch police in response to an emergency call amounts

to an “act or omission *** in connection with developing, adopting, operating or implementing

any plan or system required by [the Emergency Telephone System] Act.” Id. The plain language



                                                10
No. 1-17-0205


of the applicable version of section 15.1 related to an emergency system operator’s development,

adoption, operation, or implementation of an emergency “plan or system” and did not expressly

contemplate the provision of emergency services. Therefore, based on the plain language of

section 15.1, the provision of 911 services was not governed by the Emergency Telephone

System Act in May 2009.

¶ 22   The parties direct our attention to four appellate court decisions and one federal district

court order that have addressed the applicability of the Emergency Telephone System Act. Those

cases, however, were all decided prior to our supreme court’s decision in DeSmet, and only two

of those cases addressed a situation that clearly fell within section 15.1.

¶ 23   In Galuszynski v. City of Chicago, 131 Ill. App. 3d 505 (1985), the plaintiffs sued the

City to recover damages for injuries they sustained during a burglary. The plaintiffs alleged that

they called 911 to report someone attempting to break into their home but that police did not

arrive until 24 minutes after the 911 call, during which time the intruder entered the plaintiffs’

home and attacked them. Id. at 506. The City moved to dismiss the plaintiffs’ complaint,

asserting that the City was immune under section 4-102 of the Tort Immunity Act and that the

plaintiffs failed to allege any special duty. Id. The circuit court dismissed the plaintiffs’

complaint, and we affirmed the circuit court’s judgment, finding that the plaintiffs did not

adequately allege any special duty. Id. at 508. The plaintiffs also argued on appeal that section

15.1 of the Emergency Telephone System Act provided for tort liability based on willful or

wanton misconduct on the part of police officials operating a 911 system. Id. at 509. We

observed, however, that the plaintiffs’ argument would require us to find that section 4-102 of

the Tort Immunity Act was “implicitly repealed by the enactment of section 15.1 of the

[Emergency Telephone System Act],” and we declined to make any such finding. Id.



                                                 11
No. 1-17-0205


¶ 24   One year later, a different panel of this court filed an opinion in Barth v. Board of

Education of the City of Chicago, 141 Ill. App. 3d 266 (1986). There, the plaintiff sued both the

Board of Education of the City of Chicago and the City of Chicago to recover for injuries

sustained by his 11-year-old son, who suffered a head injury while at school. Id. at 269. Twenty

five minutes after the injury, the school called 911. Id. at 269-70. The school called 911 two

more times in the next 45 minutes. Id. at 270. An ambulance was dispatched three minutes after

the third call, and the boy was taken to the hospital. Id. at 271. The plaintiff’s complaint asserted

negligence claims against the defendants and alleged that the defendants’ conduct was willful

and wanton. Id. At trial, a doctor testified that the delay in transporting the boy to the hospital

permitted a blood clot on the boy’s brain to grow from the size of a walnut to the size of an

orange. Id. After the close of the plaintiff’s case in chief, the circuit court denied the defendants’

motions for a directed verdict, which asserted in part that the defendants were immune from

liability. Id. at 271-72. A jury returned a verdict in favor of plaintiff, and defendants appealed. Id.

at 272. On appeal, we rejected the defendants’ arguments that the 911 system was a police

protection service and therefore concluded that defendants were not immune from liability under

section 4-102 of the Tort Immunity Act. Id. at 278-79. We expressly disagreed with

Galuszynski’s assumption that the 911 system was a police protection service for the purpose of

section 4-102 of the Tort Immunity Act. Id. We concluded that “the applicable standard of

liability is that of wilful and wanton misconduct, found in section 15.1 of the [the Emergency

Telephone System] Act.” Id. at 280.

¶ 25   In Harrell, 945 F. Supp. at 1114, the plaintiffs sued the City of Chicago Heights, Illinois

Bell Telephone Company, and Ameritech Corporation for wrongful death, loss of consortium,

and federal civil rights violations for allegedly failing to provide emergency services. The



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No. 1-17-0205


plaintiffs alleged that Patrick Harrell suffered a heart attack and that family members and

neighbors called 911, but that the dispatcher hesitated in responding to the first of the emergency

calls while attempting to ascertain whether the plaintiffs lived within the city’s service

boundaries. Id. Harrell was eventually transported to a hospital by an ambulance from a

neighboring municipality, but died at the hospital. Id. The plaintiffs contended that the city and

the telephone providers were liable based on the failure to designate the plaintiffs’ phone number

and address to receive for 911 services despite the fact that the plaintiffs lived within the city’s

municipal boundaries for more than 20 years. Id. The city moved for summary judgment

asserting, in part, that it was immune from liability under section 5-101 of the Tort Immunity Act

(745 ILCS 10/5-101 (West 1992)). Harrell, 945 F. Supp. at 1115. The district court disagreed,

finding that there was no “ ‘complete[ ] fail[ure]’ to provide emergency services and any

subsequent actions fell outside the scope of the immunity provisions of [section] 5-101.” Id. at

1116. The district court then determined that the city’s liability in relation to 911 services “is

more properly governed by [the Emergency Telephone System Act].” Id. The district court

looked to section 15.1 and concluded “the [c]ity could be liable for damages caused by willful

and wanton misconduct taken by itself or its agents in regard to the failure to include the Harrell

residence in the [911] system or for the failure expeditiously to dispatch rescue vehicles to the

Harrell residence.” Id. at 1117. The district court relied on our decision in Barth to conclude that

applying section 5-101 of the Tort Immunity Act’s immunity for failure to “otherwise ***

provide [***] rescue or other emergency service” would “defeat the purpose of the [Emergency

Telephone Service] Act.” (Internal quotation marks omitted.) Id. The federal district court, like

the court in Barth, distinguished Galuszynski on the basis that “the [c]ity’s provision of [911]

paramedic service is clearly not a ‘police protection service.’ ” Id. In sum, the district court



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No. 1-17-0205


concluded that the city could be liable for damages on a showing of willful and wanton

misconduct. Id. at 1118.

¶ 26   Finally, in Chiczewski v. Emergency Telephone System Board of Du Page County, 295

Ill. App. 3d 605 (1997), the plaintiffs sued defendant to recover damages for injuries sustained

by a minor child during a home invasion. The plaintiffs resided in an unincorporated area outside

of the City of Naperville. Id. at 607. The Illinois Commerce Commission had previously ordered

the defendant to cover that unincorporated area with its emergency telephone system, but the

defendant had failed to so. Id. at 606-07. When the child’s mother called 911, her call was routed

to Naperville’s emergency telephone system rather than the defendant’s system. Id. at 607. The

Naperville dispatcher could not dispatch emergency services outside of Naperville but

immediately transferred the mother’s call to the Du Page County sheriff’s office. Id. Police

arrived at the plaintiffs’ home within 11 minutes of the emergency call and paramedics arrived a

few minutes later, but the mother had already left to drive the child to a hospital. Id. Plaintiffs

sued, asserting that defendant’s failure to implement a 911 system was willful and wanton. Id.

The circuit court granted summary judgment in favor of the defendant, finding that the

defendant’s conduct was not willful and wanton. Id. On appeal, the plaintiffs argued in part that

the defendant failed to enter into an agreement with Naperville and was aware that the plaintiff’s

home was not sufficiently covered by Naperville’s emergency telephone system. Id. at 609. We

rejected that argument and observed that the plaintiffs “failed to plead any facts or present any

evidence that [the] defendant should have been aware that calls from [the] plaintiffs’ subdivision

would be misrouted to Naperville.” Id. We further found that the plaintiffs could not establish

willful and wanton misconduct because the plaintiffs only showed “that a misrouting of an

emergency call may have contributed to an 11-minute response time by emergency personnel,”



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which did not evince “intent, utter indifference, or conscious disregard.” (Internal quotation

marks omitted.) Id. at 610.

¶ 27   Chiczewski and Harrell clearly involve claims alleging the failure to develop, adopt,

operate, or implement an emergency telephone system as required by law, and thus fall within

section 15.1 of the Emergency Telephone System Act. However, Barth’s broader holding—that

the 911 system is not a police protection service—is contrary to our supreme court’s subsequent

holding in DeSmet. Furthermore, Barth is only consistent with DeSmet to the extent that DeSmet

recognized that the type of emergency response required affects the applicability of section 4-

102 of the Tort Immunity Act. See DeSmet, 219 Ill. 2d at 512 (finding section 4-102 is

implicated where “the assistance required *** falls within the statutory umbrella of ‘police

protection services’ ”). Therefore, Barth stands for the proposition that when an emergency 911

caller requests emergency medical services and does not request any police response, section 4-

102 is inapplicable because the response does not involve any sort of police protection service. It

is not altogether clear to us, however, that under the applicable version of section 15.1 of the

Emergency Telephone System Act, a tort claim based solely on a delay in dispatching

emergency services implicates section 15.1. Regardless, the 911 call here clearly requested

police intervention in response to a robbery in progress and therefore involves a police protection

service for the purposes of section 4-102 of the Tort Immunity Act, which is not supplanted by

section 15.1 of the Emergency Telephone System Act.

¶ 28   Furthermore, plaintiffs’ reliance on Coleman is misplaced. The sole issue in Coleman

was the continued viability of the public duty rule. There, the plaintiff brought wrongful death

and survival claims on behalf of the decedent Coretta Coleman. Coretta, who lived in Sugar

Creek, an unincorporated area in Will County, placed a 911 call seeking emergency medical



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No. 1-17-0205


services. Her call was routed to a police dispatch center operated by the Will County sheriff’s

office, which was then transferred to Orland Central Dispatch. Coleman, 2016 IL 117952, ¶ 5.

The defendant, East Joliet Fire Protection District, provided fire and ambulance services to Sugar

Creek and contracted with Orland Central Dispatch to dispatch those services. Id. An ambulance

was dispatched to Coleman’s address but when paramedics arrived, there was no response and

the doors were locked. Id. ¶ 7. The paramedics spoke to Coleman’s neighbors and said that they

could not make a forced entry without police present and that the neighbors should call the police

to make a forced entry. Id. ¶ 8. A supervisor at the East Joliet Fire Protection District ordered the

paramedics to leave. Id. ¶ 9. Coleman’s neighbors called 911 and asked for police to be

dispatched, and another neighbor called 911 to report an emergency at “1600 Sugar Creek

Drive,” which was Coleman’s address. Id. ¶ 10. The dispatcher contacted Orland Central

Dispatch to report a medical emergency, but gave Coleman’s address as “1600 Sugar Creek.” Id.

¶ 11. An ambulance was dispatched to 1600 Sugar Creek Court instead or 1600 Sugar Creek

Drive, and paramedics could not find Coleman’s house. Id. A different ambulance found

Coleman’s house 41 minutes after the initial 911 call and were able to enter the home, but found

Coleman unresponsive. Id. She was taken to a hospital where she was pronounced dead. Id.

¶ 29   Coretta’s husband, as administrator of her estate, sued numerous defendants for wrongful

death and survival. Id. ¶ 12. Several of the plaintiff’s claims asserted willful and wanton conduct.

Id. ¶ 13. Defendants moved for summary judgment, asserting that they did not owe Coretta any

duty under the public duty doctrine and alternatively asserted various statutory immunities,

including the Emergency Medical Services (EMS) Systems Act (210 ILCS 50/3.150 (West

2006)), the Emergency Telephone System Act, and the Tort Immunity Act. Coleman, 2016 IL

117952, ¶ 15. The circuit court granted summary judgment in favor of defendants based on the



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public duty rule and the appellate court affirmed. Id. Our supreme court granted the plaintiff’s

petition for leave to appeal and abolished the public duty rule, concluding that “the underlying

purposes of the public duty rule are better served by application of conventional tort principles

and the immunity protection afforded by statutes than by a rule that precludes a finding of a duty

on the basis of the defendant’s status as a public entity.” Id. ¶ 61. The supreme court then

remanded the case to the circuit court for further proceedings. Coleman is plainly inapplicable to

the situation here, as the court did not undertake any effort to determine the scope of any

statutory immunity. Furthermore, in Coleman, the circuit court and appellate court did not reach

the issue of whether any statutory immunity applied, instead relying solely on the common law

public duty rule. Here, the circuit court did not rely on the public duty rule to reach its decision

and instead considered conventional tort principles and the relevant statutory immunities as

instructed by Coleman.

¶ 30   Finally, even assuming arguendo that section 15.1 of the Emergency Telephone System

Act did apply, the circuit court properly granted summary judgment in favor of the City because

plaintiffs did not come forward with any evidence that might create any genuine issue of material

fact as to whether the City’s conduct was willful or wanton.

¶ 31   Willful and wanton conduct is defined as “conduct as a course of action which shows

actual or deliberate intent to harm or which, if the course of action is not intentional, shows an

utter indifference to or conscious disregard for a person’s own safety or the safety or property of

others.” Pfister v. Shusta, 167 Ill. 2d 417, 421-22 (1995). Willful and wanton conduct “includes a

range of mental states, from actual or deliberate intent to cause harm, to conscious disregard for

the safety of others or their property, to utter indifference for the safety or property of others.”

Harris v. Thompson, 2012 IL 112525, ¶ 41. Whether conduct rises to the level of willful and



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wanton is ordinarily a question of fact (id. ¶ 42), but the circuit court may enter judgment in

favor of the defendant as a matter of law where the evidence clearly shows that the conduct

cannot meet the willful and wanton standard (Lacey v. Perrin, 2015 IL App (2d) 141114, ¶ 39).

¶ 32   Here, units were dispatched within eight minutes of the first call, and Hansen stated that

OEMC standards require that units be dispatched within 10 minutes of receiving a priority 1A

emergency call. Although Hansen could not be certain that there were actually more events

pending than units available, she stated that the most likely reason for the eight minute dispatch

time was that no units were available for immediate dispatch. Plaintiffs did not come forward

with any evidence to show that there were units available for dispatch. Plaintiffs argue that “units

2530, 2534, 2590, 2599, 2573 each appeared to have been available for assignment.” However,

at her deposition, Hansen stated that unit 2530 was a “sergeant’s car” and would not typically be

dispatched to an incident; units 2590 and 2599 were the field unit and watch commander,

respectively, and would not typically be dispatched to a robbery; and unit 2534 was on another

assignment. Finally Hansen stated that unit 2573 did not appear to have been on another

assignment, but there are no other facts in the record to show that unit 2573 was available for

dispatch. And while plaintiffs contend that Hansen was not certain that the RAP was the cause of

any dispatch delay, plaintiffs do not identify any evidence in the record to show that the

dispatcher deliberately ignored the first emergency call or that the dispatcher consciously

disregarded the first emergency call. Based on the record before us, we agree with the circuit

court that there is no genuine issue of material fact that the City’s conduct fell below the standard

of willful or wanton. Therefore, even if section 15.1 of the Emergency Telephone System Act

applied, the City would be immune from civil liability.




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¶ 33     Based on our disposition, we need not address whether the City owed Norton a duty or

whether plaintiffs could establish that the City’s conduct was a proximate cause of Norton’s

death.

¶ 34                                       CONCLUSION

¶ 35     For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 36     Affirmed.




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