                         No. 3--09--1008
_________________________________________________________________
Filed October 29, 2010
                              IN THE

                      APPELLATE COURT OF ILLINOIS

                              THIRD DISTRICT

                                A.D., 2010

MARIE POUK, Individually and  )    Appeal from the Circuit Court
as Special Administratrix for )    of the 12th Judicial Circuit
the Estate of Christine Jane  )    Will County, Illinois
Jungkans, Deceased,           )
                              )
     Plaintiff-Appellant,     )
                              )
     v.                       )
                              )    No. 08--L--444
THE VILLAGE OF ROMEOVILLE,    )
                              )
     Defendant-Appellee       )
                              )
(Gregory D. Gotches and Sybert)
Landscaping, Inc.,            )    Honorable
                              )    Michael J. Powers
     Defendants).             )    Judge, Presiding
_________________________________________________________________

     JUSTICE LYTTON delivered the opinion of the court:
_________________________________________________________________

     Plaintiff, Marie Pouk, filed a complaint against the Village

of Romeoville, alleging willful and wanton conduct.               The Village

filed   a   motion   to   dismiss,   arguing   that   it   was    immune   from

liability pursuant to the Local Governmental and Governmental

Employees Tort Immunity Act (Act) (745 ILCS 10/1-101 et seq.

(West 2006)).    The trial court granted the motion.             We affirm.

     On May 9, 2008, plaintiff’s daughter, Christine Jungkans,
was driving north on Hale Avenue in the Village.                      After stopping

at a stop sign at the intersection of Hale Avenue and 135th

Street, Jungkans proceeded to make a left turn onto 135th Street.

At the same time, Tomasz Maciaszek was driving east on 135th

Street,     approaching     its   intersection         with    Hale    Avenue.     As

Jungkans     turned    onto     135th     Street,      Maciaszek’s      vehicle   hit

Jungkans’ vehicle and killed her.

       In   July    2009,     plaintiff        filed   a   three-count     complaint

against the Village, Gregory D. Gotches and Sybert Landscaping,

Inc.    The counts against Gotches and Sybert Landscaping alleged

negligence.        The count against the Village alleged willful and

wanton conduct.        The claim against the Village is the only one

relevant to this appeal.            The following facts are taken from

plaintiff’s complaint.

       Gregory Gotches owns property at the southwest corner of the

intersection of Hale Avenue and 135th Street in the Village.

There are bushes located on the northeast portion of Gotches’

property.     In the fall of 2007, the Village was notified by a

resident that the bushes on Gotches’ property obstructed the view

of drivers turning left from Hale Avenue onto 135th Street.                       On

November 24, 2007, a Village representative inspected Gotches’

property     and    determined    that     the     bushes     violated    a   village

ordinance governing intersection visibility.                   The Village served


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a notice of code violation on Gotches on November 24, 2007.                              The

notice required Gotches to take action before December 1, 2007.

       After    receiving      the     notice,      Gotches’     wife     contacted      the

Village and asked what she needed to do to correct the problem.

An employee from the Village code enforcement division gave her

the    name    of    several    landscaping          companies,     including       Sybert

Landscaping.          Mrs.    Gotches       contacted     Sybert    Landscaping,         and

Sybert agreed to trim the bushes.                   Sybert trimmed the bushes and

told   the     Gotches       that    they    no     longer   obstructed      motorists’

vision.        After    the    trimming       was    complete,     the    Village       sent

Gotches another letter indicating that the violation had not been

abated.         Thereafter,         Mrs.     Gotches      informed        Village       code

enforcement         officer    Cliff    McChesney        that    Sybert    had    already

trimmed the bushes.           McChesney told Mrs. Gotches that he thought

that the bushes could be trimmed further.                        However, he said he

would ask his supervisor and let Mrs. Gotches know if further

action was necessary.           Neither McChesney nor anyone else from the

Village ever contacted Gotches or his wife after that.

       Plaintiff’s complaint alleges that the bushes on Gotches’

property       violated       two    sections       of   the     Village’s       code     of

ordinances       that     prohibit       bushes       from      being     located       near

intersections so as to obstruct motorists’ views.                        See Village of

Romeoville, Illinois Code of Ordinances app. A, §§ 159.014(G),


                                              3
159.030(D)(4)(q) (adopted February 7, 2007, and February 1, 2006,

respectively).       The complaint further alleges that the Village

committed willful and wanton conduct by (1) failing to advise

Gotches    whether    more     trimming       was   necessary    when   McChesney

promised to do so, (2) failing to institute court proceedings

against Gotches to compel enforcement with its ordinance, (3)

failing to notify Gotches that a volunteer service could remedy

the obstruction, (4) recommending that the problem be fixed by

Sybert Landscaping, and (5) failing to advise Gotches that more

trimming was necessary.

     The   Village     filed    a   motion     to   dismiss     pursuant   to   (1)

section 2-615 of the Code of Civil Procedure (Code) (735 ILCS

5/2-615 (West 2006)) for failure to state a claim and (2) section

2-619 of the Code (735 ILCS 5/2-619 (West 2006)), asserting that

it was immune from liability under sections 2-103, 2-105 and 2-

106 of the Act (745 ILCS 10/2-103, 2-105, 2-106 (West 2006)).

The trial court granted the motion and dismissed the complaint

with prejudice pursuant to section 2-619 of the Code.

                                    ANALYSIS

     Plaintiff argues that section 2-202 of the Act, rather than

sections 2-103, 2-105 and 2-106, applies to the allegations of

her complaint.       Section 2-202 of the Act, unlike sections 2-103,

2-105, and 2-106, does not immunize willful and wanton conduct.


                                          4
Because her complaint alleges willful and wanton conduct, she

contends that the trial court erred in dismissing her action

against the Village.

       In 1965, the legislature enacted the Local Governmental and

Governmental Employees Tort Immunity Act to protect local public

entities and public employees from liability resulting from the

operation of government.          Anthony v. City of Chicago, 382 Ill.

App. 3d 983, 987, 888 N.E.2d 721, 725 (2008).        The purpose of the

Act is to ensure that public funds are not dissipated by private

damage awards.     Anthony, 382 Ill. App. 3d at 987, 888 N.E.2d at

725.

       When   interpreting   an    immunity   provision,   a   court   must

ascertain and give effect to the legislature’s intent by relying

on the language used in the Act, construing each word in its

context and ensuring that no term is rendered superfluous or

meaningless.     Ware v. City of Chicago, 375 Ill. App. 3d 574, 581,

873 N.E.2d 944, 951 (2007).          The legislature has the exclusive

authority to extend the existing immunities; therefore, where the

language of the immunity is clear and unambiguous, we may not

read into it exceptions, limitations or conditions not expressly

described by the plain language of the immunity.           Ware, 375 Ill.

App. 3d at 581-82, 873 N.E.2d at 951.

       Section 2-103 of the Act provides that "[a] local public


                                      5
entity is not liable for an injury caused by *** failing to

enforce any law."         745 ILCS 10/2-103 (West 2006).               Section 2-105

immunizes   a   local      public       entity   for    injuries      caused    by    its

failure to make an inspection or making an inadequate inspection

of property.        745 ILCS 10/2-105 (West 2006).                    Section 2-106

grants    immunity    to       local    public    entities     for    negligent        and

intentional oral promises or misrepresentations.                      745 ILCS 10/2-

106 (West 2006).      Those sections do not contain an exception for

willful and wanton conduct.              Bowler v. City of Chicago, 376 Ill.

App. 3d 208, 214, 876 N.E.2d 140, 145 (2007); 745 ILCS 10/2-106

(West 2006).

     Section      2-202    immunizes       public      employees     for   an   act     or

omission "in the execution or enforcement of any law unless such

act or omission constitutes willful and wanton conduct."                               745

ILCS 10/2-202 (West 2006).               Section 2-202 applies when a public

employee performs some negligent act while engaged in a course of

conduct    designed       to    carry    out     or    put   into    effect     a     law.

Fitzpatrick v. City of Chicago, 112 Ill. 2d 211, 221, 492 N.E.2d

1292, 1296 (1986).         The required elements that a plaintiff must

establish   for    the     application      of    section     2-202    are:     (1)    the

municipality was aware of the particular danger or risk to which

the plaintiff is exposed; (2) specific acts or omissions by a

municipal employee occurred; (3) the specific acts were willful


                                           6
in nature; and (4) the injury occurred while the plaintiff was

under the direct and immediate control of municipal employees.

Ware, 375 Ill. App. 3d at 584, 873 N.E.2d at 953.

       Ordinarily, the determination of whether a public employee

is enforcing a law is a question of fact that must be determined

by the trier of fact in light of the circumstances in each case.

Lacey v. Village of Palatine, 232 Ill. 2d 349, 367, 904 N.E.2d

18, 28     (2009).     However,    a   court   may,   as   a    matter   of   law,

determine whether a public employee is enforcing a law when the

facts alleged support only one conclusion.             Lacey, 232 Ill. 2d at

367, 904 N.E.2d at 28.

       Several courts have considered whether section 2-202, rather

than   sections      2-103   and   2-105,   apply     to   public    employees’

conduct.     See Anthony, 382 Ill. App. 3d 983, 888 N.E.2d 721;

Ware, 375 Ill. App. 3d 574, 873 N.E.2d 944; Bowler, 376 Ill. App.

3d 208, 876 N.E.2d 140.        Those cases make clear that in order to

fall within the ambit of section 2-202, a complaint must allege

that the plaintiff’s injury occurred while public employees were

in the course of putting into effect a law.                    See Anthony, 382

Ill. App. 3d at 993, 888 N.E.2d at 730; Ware, 375 Ill. App. 3d at

583-84, 873 N.E.2d at 952-53; Bowler, 376 Ill. App. 3d at 216-17,

876 N.E.2d at 146-47.

       When a complaint alleges that public employees were doing


                                        7
nothing at the time of an injury, sections 2-103 and 2-105,

rather than section 2-202, apply.                  Bowler, 376 Ill. App. 3d at

216-17, 876 N.E.2d at 146-47.                  Furthermore, where a plaintiff

alleges that a public employee took some action to enforce a law

but then stopped and an injury occurred thereafter, section 2-202

is inapplicable.        Anthony, 382 Ill. App. 3d at 993, 888 N.E.2d at

730.

       Here,    plaintiff’s       complaint       alleges     that      the    Village,

through its employees, failed to instruct Gotches to trim his

bushes further and failed to enforce its intersection visibility

ordinance.      Such allegations suggest that the Village failed to

act and fall squarely within sections 2-103 and 2-105.                              See

Bowler, 376 Ill. App. 3d at 216-17, 876 N.E.2d at 146-47.                          While

the     complaint      alleges      that        Village      employees        undertook

enforcement of the Village ordinance in November and December of

2007,    Village      employees    were        doing    nothing    to    enforce    the

ordinance      five    months     later    when        Jungkans’   death      occurred.

Because Village employees were not in the course of putting into

effect any law at the time of plaintiff’s injury, section 2-202

does not apply.        See Anthony, 382 Ill. App. 3d at 993, 888 N.E.2d

at 730; Ware, 375 Ill. App. 3d at 583-84, 873 N.E.2d at 952-53;

Bowler, 376 Ill. App. 3d at 216-17, 876 N.E.2d at 146-47.

       The trial court properly found that sections 2-103 and 2-105


                                           8
of   the   Act    apply       based    on       the   allegations      contained   in

plaintiff’s      complaint.           Those      sections   do   not     contain   an

exception for willful and wanton conduct.                   See Bowler, 376 Ill.

App. 3d    at    214,   876    N.E.2d    at      145.    Thus,   the    trial   court

properly dismissed plaintiff’s action against the Village.

                                      CONCLUSION

     The order of the circuit court of Will County is affirmed.

     Affirmed.

     CARTER and SCHMIDT, JJ., concur.




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