Keener v. City of Herrin

Citations: 895 N.E.2d 1141; 385 Ill. App. 3d 545Docket: 5-06-0501

Court: Appellate Court of Illinois; October 6, 2008; Illinois; State Appellate Court

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Jennifer Keener, as both the mother and administrator of the estate of Chelsea Keener, filed a lawsuit against the City of Herrin after Chelsea was struck and killed by a vehicle while walking intoxicated on a public street. The incident occurred on August 9, 2003, following Chelsea's arrest for underage drinking earlier that morning. Jennifer alleged that the City of Herrin was negligent and acted willfully and wantonly by allowing Chelsea to leave police custody unsupervised while she was still intoxicated, despite being notified that an adult would pick her up. 

After an initial complaint was dismissed, Jennifer filed an amended complaint asserting that Herrin owed a special duty to Chelsea. Herrin responded with a motion to dismiss, supported by an affidavit from the arresting officer. During a court management conference, it was agreed that the motion would be taken under advisement to allow for further discovery, but the court ultimately dismissed the amended complaint, stating that Jennifer chose to stand on her pleadings without requesting amendments. The appellate court reversed the dismissal in part and remanded the case for further proceedings.

No notification regarding the dismissal of the amended complaint was sent to the attorneys, leaving them unaware of the dismissal when they conducted a deposition of Officer Laird on March 13, 2006. On April 17, 2006, Jennifer filed a response to Herrin's motion to dismiss, citing Laird's deposition. Herrin's attorney then requested a hearing on pending issues related to the motion to dismiss and Jennifer’s response. The court later set a status hearing after receiving this request. During the August 7, 2006, hearing, both attorneys discovered for the first time that the amended complaint had been dismissed with prejudice on September 13, 2005, and acknowledged that no notification had been sent to the attorneys. Following this, Jennifer filed a "Motion to Reconsider" on August 17, 2006, under section 2-1401 of the Code of Civil Procedure, arguing that she had acted with due diligence during litigation despite the dismissal. On August 25, 2006, the circuit court granted her motion to reconsider, reaffirming the dismissal of the case but allowing for further review. Jennifer filed a notice of appeal focused solely on the order granting Herrin's motion to dismiss. Herrin did not file an appeal or cross-appeal regarding the circuit court's order on Jennifer's motion for relief. The court then examined its jurisdiction over Jennifer's appeal due to concerns raised sua sponte about its validity.

Jurisdiction over Jennifer's appeal from the August 25, 2006, order dismissing her amended complaint is confirmed. Supreme Court Rule 303 outlines the conditions for appellate jurisdiction, specifically that a notice of appeal must be filed within 30 days of a final judgment or 30 days following the resolution of any posttrial motions. If a party fails to file timely, Rule 303(d) allows for a motion for an extension, provided there is a reasonable excuse for the delay, but adherence to these rules is strictly mandatory and cannot be waived by the courts.

The effective date of a final judgment, which triggers the start of the appeal period, is when it is publicly recorded with the court clerk. In Jennifer's case, the circuit court dismissed her amended complaint with a docket entry on September 13, 2005, but the judicial secretary failed to notify any attorneys of record, leading to a lack of actual notice. According to Supreme Court Rule 272, the judgment was final upon its recording, meaning Jennifer had until October 13, 2005, to file her notice of appeal or an extension request, neither of which she did due to her unawareness of the judgment.

Herrin argues that jurisdiction is lacking for Jennifer's appeal, citing the Granite City Lodge case, which established that the appeal period is unaffected by a lack of actual notice. However, the current situation is distinguished from Granite City Lodge because Jennifer did not appeal the September 13, 2005, dismissal order itself.

Jennifer's attorney filed a motion for relief from the final judgment under section 2-1401 of the Illinois Code of Civil Procedure, which allows for vacating a judgment more than 30 days post-entry. The circuit court granted this petition on August 25, 2006, yet also dismissed the amended complaint after reviewing new evidence. The appeal stemming from this order requires distinct analysis compared to Granite City Lodge, as that case did not involve a section 2-1401 petition. Such petitions initiate a new cause of action, not a mere continuation of the original case, and aim to present facts that, if known earlier, could have altered the judgment outcome. The petition must demonstrate a valid claim or defense and the petitioner's due diligence.

An order regarding a section 2-1401 petition is final and appealable, creating a separate appeal process from the original judgment. The opposing party, Herrin, argued against the jurisdiction of this appeal by citing Mitchell v. Fiat-Allis, Inc., which ruled that a section 2-1401 petition cannot extend appeal filing times. However, the current case diverges from Mitchell because the latter solely relied on lack of notice to seek reentry of the same judgment, while this case presents new evidence and arguments. Furthermore, in Mitchell, the employer cross-appealed the granting of the section 2-1401 petition, which is not present in Jennifer's case.

Jennifer's section 2-1401 petition introduced new evidence, specifically deposition testimony from Officer Laird, which was not available to the circuit court at the time of its initial dismissal order. Unlike a mere request to reinstate the previous dismissal for the purpose of restarting the appeal timeline, Jennifer sought to have the court deny the defendant's dismissal motion. Section 2-1401 is designed to allow the introduction of facts not present in the original record, aligning with the principle that litigation should be resolved on its merits. Jennifer's petition was not a tactic to circumvent the time constraints of Rule 303(a), and the precedent set in Mitchell does not preclude her from filing a legitimate petition based on new evidence. Although the Mitchell ruling emphasized the necessity for litigants to monitor their cases, it also recognized that lack of notice alone does not justify relief under section 2-1401. The case at hand diverges from Mitchell, as the August 25, 2006, docket entry included two distinct orders: one that granted Jennifer's section 2-1401 petition, reinstating her lawsuit, and another that dismissed her amended complaint. Jennifer only appealed the latter dismissal, while Herrin did not appeal the reinstatement order, which limits the court's jurisdiction to review that aspect. The court emphasized the importance of jurisdiction and upheld the principle that the absence of appeal from a section 2-1401 ruling, even when notified, does not warrant jurisdictional review. Consequently, the court confirmed its lack of jurisdiction over the order vacating the previous judgment but validated Jennifer's appeal concerning the dismissal of her amended complaint.

Jennifer's appeal involves an amended complaint with five counts against Herrin: two counts of negligence, two counts of wilful and wanton conduct, and one count invoking the special-duty exception to the Tort Immunity Act (745 ILCS 10/1-101 et seq.). The circuit court dismissed her complaint, and Jennifer is appealing this decision. The court upheld the dismissal of the negligence and special-duty counts but found error in dismissing the counts of wilful and wanton conduct.

Historically, Illinois governmental bodies enjoyed absolute immunity from tort liability, a doctrine that was abolished in the landmark case Molitor v. Kaneland Community Unit District No. 302. In response, the legislature enacted the Tort Immunity Act in 1965, re-establishing certain immunities for governmental entities. Following the 1970 Illinois Constitution, the legislature retained authority to define the circumstances for tort liability of local governments. The Tort Immunity Act does not create new duties but codifies existing common-law duties, and its provisions must be strictly construed as they serve as affirmative defenses for governmental entities.

Immunity under the Tort Immunity Act can be raised in a motion to dismiss under section 2-619(a)(9) of the Code of Civil Procedure, which allows dismissal based on affirmative matters that defeat a claim. Courts must interpret pleadings favorably for the nonmoving party, accepting the legal sufficiency of the complaint while evaluating the affirmative defense. 

In this case, the facts indicate that Officer Laird of the Herrin police department arrested Chelsea for underage drinking and permitted her to leave the station unsupervised and intoxicated, despite her arrangements for a sober ride. Tragically, Chelsea was later struck and killed by a vehicle while walking alone.

Jennifer's complaint claims that Herrin is liable for Chelsea's death and questions Herrin's entitlement to immunity under the Tort Immunity Act. Herrin asserts it has absolute immunity under sections 4-102 and 4-107 of the Act, which protect local public entities and employees from liability for failure to provide adequate police protection and for failure to make arrests, respectively. These sections grant blanket immunity for both negligent and wilful conduct. However, section 2-202 limits this immunity, stating that a public employee is liable for acts or omissions in law enforcement only if they constitute wilful and wanton conduct. 

To resolve this, the court must interpret whether the absolute immunity of sections 4-102 and 4-107 or the limited immunity of section 2-202 applies to Jennifer's claim. The court follows the principle of statutory construction to determine legislative intent, looking at the plain meanings of the statutes while attempting to harmonize any conflicting provisions. Case law establishes two exceptions to the absolute immunity: the special-duty exception and the wilful and wanton conduct exception under section 2-202. 

The Illinois Supreme Court's decision in Doe v. Calumet City established that actions can be maintained against police officers for wilful and wanton conduct while executing their duties. Conversely, in Zimmerman v. Village of Skokie, the court ruled that the special-duty exception is unconstitutional but upheld the wilful and wanton exception. Thus, while plaintiffs cannot invoke special duty to bypass immunity, they can challenge absolute immunity by demonstrating wilful and wanton conduct in law enforcement actions.

The excerpt highlights the applicability of the wilful-and-wanton exception to immunity under section 2-202 of the Tort Immunity Act and its relevance to Jennifer's claim regarding her deceased daughter, Chelsea. The Illinois Supreme Court recognizes a similar exception under section 305 of the Illinois Domestic Violence Act. Section 2-202 states that municipalities are liable for wilful and wanton acts in the execution or enforcement of any law. The analysis draws parallels to the cases of Fatigato and Ozik, where police officers were deemed liable for injuries caused by allowing intoxicated individuals to drive away. In Chelsea's case, the Herrin police, after arresting her for underage alcohol consumption, released her unsupervised. This act is framed as wilful and wanton conduct, leading to her being struck and killed by a vehicle. Consequently, the principles established in Fatigato and Ozik support the assertion that Herrin's police department may be liable for Chelsea's death due to their failure to maintain control over her as an intoxicated pedestrian.

Jennifer's allegations present triable issues of fact regarding Herrin's liability for willful and wanton conduct. Herrin referenced the DeSmet v. County of Rock Island case, arguing for a dismissal based on blanket immunity from the Tort Immunity Act. However, the court found that DeSmet supports the reversal of the dismissal regarding willful and wanton counts since it involved a police department's failure to respond, resulting in the court granting immunity under section 4-102. In contrast, Herrin had a police officer respond to the situation, which imposed a duty to avoid willful and wanton acts. Consequently, section 2-202 immunity applies to Jennifer's claims. The court reversed the dismissal of counts III and IV, which alleged Herrin's willful and wanton conduct leading to Chelsea's death, and remanded for jury determination. The court affirmed the dismissal of counts I, II, and V, with I and II being based on negligence, for which Herrin is immune, and V being dismissed due to its violation of constitutional provisions regarding sovereign immunity and separation of powers. The circuit court's order was affirmed in part and reversed in part, with further proceedings mandated on counts III and IV.