                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 06-4206
REMET CORPORATION and U.S. FIRE INSURANCE COMPANY,
as subrogee of Remet Corporation,
                                           Plaintiffs-Appellants,
                                v.


CITY OF CHICAGO, an Illinois municipal corporation,
                                            Defendant-Appellee.
                         ____________
           Appeal from the United States District Court
      for the Northern District of Illinois, Eastern Division.
            No. 06 C 5571—Milton I. Shadur, Judge.
                         ____________
 ARGUED OCTOBER 22, 2007—DECIDED DECEMBER 4, 2007
                   ____________


 Before KANNE, EVANS, and WILLIAMS, Circuit Judges.
  EVANS, Circuit Judge. In this negligence case, the
plaintiffs, Remet Corporation and United States Fire
Insurance Company, its subrogee (we will refer to both as
“Remet”), allege that a fire destroyed Remet’s manu-
facturing facility because the defendant, the City of
Chicago, interrupted water service to the building’s fire
sprinklers and nearest fire hydrants and failed to restore
service before the fire. The City maintains that, even if
these allegations are true, Remet’s claim is barred by the
Local Governmental and Governmental Employees Tort
2                                                    No. 06-4206

Immunity Act, 745 Ill. Comp. Stat. 10/1-101 et seq. Alter-
natively, the City contends that it owes Remet no duty
under Illinois common law to prevent its injury.1 Accord-
ing to Remet, immunity does not apply, and a duty does
indeed exist.
  District Judge Milton Shadur sided with the City when
it moved to dismiss the complaint for failing to state a
cause of action under Federal Rule of Civil Procedure
12(b)(6). We review the dismissal order de novo, accepting
all well-pled factual allegations as true and construing
all reasonable inferences in favor of Remet on its appeal
of that decision.2 Massey v. Merrill Lynch & Co., 464 F.3d
642, 645 (7th Cir. 2006). Judge Shadur’s decision was
based on the Tort Immunity Act, but we may affirm his
judgment on any ground supported by the record.
Tricontinental Indus., Ltd. v. PricewaterhouseCoopers,
LLP, 475 F.3d 824, 833 (7th Cir. 2007).
  Remet’s complaint alleged the following facts. Some-
time prior to the day of the fire, the City shut off the
water to the block on which Remet’s manufacturing
facility was located in order to work on the nearby water
main. The City did not, however, advise Remet or the
Chicago Fire Department of its actions or, more impor-
tantly, turn the water back on after it completed its
work. On October 18, 2005, the second floor of Remet’s
facility caught fire. This caused the building’s sprinkler


1
  The parties do not dispute that the substantive law of Illinois
applies in this diversity action. See Erie R. Co. v. Tompkins, 304
U.S. 64, 78 (1938).
2
  This does not mean, as Remet argues in its brief, that we
accept as true its allegation that the City owed it a cognizable
duty. That is a question of law, not fact. Inserting the words “had
a duty” into a complaint—if no duty actually exists—does not
defeat a motion to dismiss.
No. 06-4206                                               3

system, which was connected to the City’s water supply, to
activate, but no water was discharged. The City was
able to reestablish water service to the sprinklers some-
time during the fire.
  The Chicago Fire Department responded to the fire
with two fire engines. The firefighters connected each of
the engines’ hoses to the two closest fire hydrants, but
both were dry. The firefighters then disconnected the
hoses and relocated the engines to use two different
hydrants, which were farther away from the building.
Despite these efforts, the fire spread throughout the
building and eventually consumed it. As of the date of
the complaint, Remet has been paid $7 million under
its insurance policy for the fire loss. Remet expects that
insurance will not fully compensate it for its injuries.
  A year after the fire, Remet filed this suit in the North-
ern District of Illinois, alleging (among other things) that
the City breached its duty to exercise reasonable care in
the control, repair, and maintenance of the underground
water lines that supplied the fire sprinklers and hydrants.
Remet claimed that, due to the City’s errors and omissions,
the sprinklers were unable to discharge any water until
service was reestablished later, and the fire department
was significantly delayed in its efforts to suppress the
fire during its critical early stages. As a result, the fire
spread and caused a total loss of Remet’s building and
its contents.
  There are two issues on appeal, which must be analyzed
separately: (1) whether the City is immune from liability
and (2) whether the City owes Remet a duty in tort.
Finding for the City on either issue is sufficient for us
to affirm the dismissal of Remet’s complaint. See DeSmet
ex rel. Estate of Hayes v. County of Rock Island, 848
N.E.2d 1030, 1036 (Ill. 2006). Courts often treat the duty
question first, only looking to immunity after a duty and
4                                                   No. 06-4206

breach are found. See, e.g., Ware v. City of Chicago, 873
N.E.2d 944, 948 (Ill. App. Ct. 2007). However, because
the district court relied upon immunity, we begin our
analysis there, assuming arguendo that the City owes
Remet a legally cognizable duty.
  Illinois’s Tort Immunity Act, which replaced the previ-
ously abolished doctrine of sovereign immunity, “protect[s]
local public entities and public employees from liability
arising from the operation of government.” 745 Ill. Comp.
Stat. 10/1-101.1(a).3 By providing immunity and defenses,
the legislature sought to ensure that public funds were
not dissipated by paying private damage claims. DeSmet,
848 N.E.2d at 1036. Section 5-102 of the Act states that
“[n]either a local public entity that has undertaken to
provide fire protection service nor any of its employees
is liable for an injury resulting from the failure to sup-
press or contain a fire or from the failure to provide or
maintain sufficient personnel, equipment or other fire
protection facilities.”
   Here, the City established a fire department, qualifying
it as “a local public entity that has undertaken to provide
fire protection service.” In addition, Remet alleged that
the fire spread and ultimately consumed its building
because the City failed to (1) notify Remet and the fire
department that water service had been interrupted and
(2) provide uninterrupted service to the hydrants and
sprinklers. This is just another way of saying that Remet’s
“injury result[ed] from the failure to suppress or contain
a fire.” Thus, the facts fall squarely within the plain
language of § 5-102.
 Illinois case law provides further support for immunity
under § 5-102. In Jones v. Village of Willow Springs, 608


3
  All statutes cited in the following discussion refer to 745 Ill.
Comp. Stat. 10.
No. 06-4206                                                  5

N.E.2d 298 (Ill. App. Ct. 1992), the Illinois appellate court
affirmed a dismissal under §§ 5-102 and 5-103 where
the plaintiffs claimed that a village’s failure to maintain
adequate water pressure in its water mains resulted in
fire damage. Similarly, in Pierce v. Village of Divernon, Ill.,
17 F.3d 1074 (7th Cir. 1994), we held that a village was
clearly protected by the Tort Immunity Act where
the plaintiffs alleged that it failed to provide an ade-
quate water supply and pressure to fight a fire. There,
we rejected the plaintiffs’ allegation that the village
interfered with the fire department’s attempts to con-
trol the blaze as “simply another way of saying that the
Village either failed to provide fire protection under [§ 5-
101] or failed to provide sufficient ‘facilities’ to suppress
or contain the fire under [§ 5-102].” Id. at 1077-78. Here,
the crux of the complaint is that the City’s negligence
prevented a supply of water that could have suppressed
the fire from reaching the hydrants and sprinklers.
Therefore, Jones and Pierce are directly on point.
   Instead of admitting defeat under Jones and Pierce,
Remet strenuously argues that they are distinguishable
and that another case, Independent Trust Corp. v. City of
Chicago Department of Water, 693 N.E.2d 459 (Ill. App. Ct.
1998), controls. In Independent Trust, the plaintiffs sued
the city for flood damage caused by a leaky underground
pipe, alleging that the city had negligently maintained,
inspected, or repaired the pipe. Because the leaky pipe
was dedicated to supplying water from the city’s water
main to a fire hydrant, the city argued that it was immune
under § 5-103 (not § 5-102) of the Tort Immunity Act,
which exempts liability for injuries “resulting from the
condition of fire protection or firefighting equipment or
facilities.” Id. at 461. The appellate court rejected this
argument and held that a pipe, unlike a hydrant, was not
“firefighting equipment or facilities” within the meaning
of § 5-103. Id. at 463.
6                                                    No. 06-4206

   Remet argues that because the City’s conduct here also
involved an underground water pipe, Independent Trust is
binding precedent. We disagree. Independent Trust
was about water damage from a leaky pipe. It did not
involve a fire. That is why the city argued for im-
munity under § 5-103, which deals with the condition of
firefighting equipment. By contrast, in our case, Remet
can only bring a claim because a fire consumed its facility.
The conduct in question involves the failure to suppress
a fire, which only would have been possible through the
City’s established water service. Thus, unlike in Independ-
ent Trust, § 5-102 is directly implicated here. Because
the fact situations and immunity provisions do not corre-
spond, applying Independent Trust to this case would be
inappropriate.4
  Notably, at oral argument, Remet’s counsel conceded
that, had there been inadequate water (as opposed to no
water) to fight the fire at its facility, the City would be
immune under Jones and Pierce. We fail to recognize
any material difference between that hypothetical and
our set of facts. Rather, we cannot understand how this
case falls under the umbrella of Independent Trust. Such
a finding would require us to ignore the nature of the
injury (fire damage) and the context of that injury (a fire)
and instead focus solely on the City’s conduct (failing to
turn the water back on). That would be like a referee


4
   C.D.L., Inc. v. East Dundee Fire Protection District, 624 N.E.2d
5 (Ill. App. Ct. 1993), is also inapposite. In C.D.L., the injury
resulted from the allegedly negligent maintenance of a fire
engine’s brakes and did not involve fire suppression. Id. at 7.
Consequently, as in Independent Trust, the court only consid-
ered § 5-103. Id. at 11. Furthermore, § 5-103 specifically ex-
cludes from immunity claims based on “negligence by reason
of the condition of a motor vehicle while it is traveling on public
ways,” which is not at issue here.
No. 06-4206                                               7

ignoring the fact that time already expired and that the
receiver dropped the pass, and still awarding a touch-
down because the quarterback threw the ball into the
end zone. Obviously, the context and the nature of the
injury matter, which is why Independent Trust is distin-
guishable, the City has immunity under § 5-102, and
Judge Shadur properly dismissed the complaint.
  We have assumed thus far that the City owes Remet a
legally cognizable duty. Because we concluded that the
City is immune from liability, we need not resolve the
duty question. However, we say a word about Remet’s
likelihood of success on that issue.
  Under Illinois common law, a municipality is not liable
for the failure to provide governmental services, such as
police or fire protection. Huey v. Town of Cicero, 243
N.E.2d 214, 216 (Ill. 1968). The policy supporting this
“public duty” (or “no duty”) rule is that the govern-
ment’s duty to preserve the community’s well-being is
owed to the public at large, rather than to specific in-
dividuals. Zimmerman v. Village of Skokie, 697 N.E.2d
699, 702 (Ill. 1998). Indeed, if a municipality were re-
quired to meet every allegation of negligence, enormous
public resources would be diverted from the provision of
governmental services to the defense of litigation and
payment of judgments. Such a situation “would virtually
render the city an insurer of every person’s property
within the limits of its jurisdiction” and would
threaten—rather than promote—continuation of such
services. Wilcox v. City of Chicago, 107 Ill. 334, 1883 WL
10307 at *4 (Ill. 1883).
  It is unsurprising, then, that no Illinois court has found
that a governmental entity has a duty to provide uninter-
rupted water service for firefighting purposes, which is
essentially Remet’s claim. And, to the extent that they
have considered related claims for fire damage arising
8                                              No. 06-4206

out of an insufficient water supply, Illinois courts have
found that no such duty exists. See, e.g., Consolidated
Biscuit Co. v. Illinois Iowa Power Co., 24 N.E.2d 582, 584-
85 (Ill. App. Ct. 1939); Miralago Corp. v. Village of Kenil-
worth, 7 N.E.2d 602, 607 (Ill. App. Ct. 1937). Thus, even
apart from statutory immunity, Illinois common law
indicates that the City owes no cognizable duty to Remet
in this case.
  For these reasons, the judgment of the district court
is AFFIRMED.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                   USCA-02-C-0072—12-4-07
