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                                    Appellate Court                        Date: 2019.03.18
                                                                           09:37:00 -05'00'



                  Carolan v. City of Chicago, 2018 IL App (1st) 170205



Appellate Court        MARGARET CAROLAN, as Independent Executor of the ESTATE
Caption                OF MICHAEL J. NORTON, Deceased, and BRITTANY NORTON,
                       Plaintiffs-Appellants, v. THE CITY OF CHICAGO, a Municipal
                       Corporation, and THE OFFICE OF EMERGENCY MANAGEMENT
                       & COMMUNICATIONS, a Department of the City of Chicago,
                       Defendants (City of Chicago, Defendant-Appellee).



District & No.         First District, First Division
                       Docket No. 1-17-0205



Filed                  June 18, 2018



Decision Under         Appeal from the Circuit Court of Cook County, No. 16-L-4331; the
Review                 Hon. Daniel T. Gillespie, Judge, presiding.



Judgment               Affirmed.


Counsel on             Baumann & Shuldiner, of Chicago (Deidre Baumann, of counsel), for
Appeal                 appellants.

                       Edward N. Siskel, Corporation Counsel, of Chicago (Benna Ruth
                       Solomon, Myriam Zreczny Kasper, and Sara K. Hornstra, Assistant
                       Corporation Counsel, of counsel), for appellee.
     Panel                     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 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 in 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
       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

             In the circuit court, the City argued that OEMC was not a suable entity because “it is merely a
             1

       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 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-
     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 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 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

                                                   -3-
       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.
       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 protection or service, failure

                                                    -4-
                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. 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:

          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.

                                                    -5-
                “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 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, 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].”
¶ 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


                                                   -6-
       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 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.
¶ 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

                                                    -7-
       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
       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 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


                                                     -8-
       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
       plaintiffs’ 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,” 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 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


                                                    -9-
       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 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 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.”

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       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.
¶ 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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