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Lacey v. Village of Palantine

Citation: Not availableDocket: 1-06-2842 Rel

Court: Appellate Court of Illinois; February 3, 2008; Illinois; State Appellate Court

Original Court Document: View Document

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Plaintiffs Susan H. Lacey and Helena Kolbasky appeal the dismissal of their second amended complaint against the Village of Palatine, the Palatine Police Department detectives, the Village of Glenview, and Glenview Police Department officers. The case arises from the murders of Mary E. Lacey and her mother Margaret Ballog by Steven Zirko in 2004. The plaintiffs allege that the defendants violated the Illinois Domestic Violence Act by failing to protect the victims after becoming aware of Zirko’s murder plot against Mary.

The defendants sought dismissal based on immunity provisions under the Local Governmental and Governmental Employees Tort Immunity Act and the Domestic Violence Act. The trial court granted the motion, ruling that the police officers were not enforcing the Domestic Violence Act during their investigation of Zirko and that Ballog was not protected under the Act. The plaintiffs do not contest the dismissal of the City of Chicago and Detective Darryl Daily, nor do they challenge the dismissal of claims under the Wrongful Death Act or the Illinois Survival Act.

Key allegations include that Mary Lacey had a history of abuse by Zirko, having obtained protective orders against him. A plenary protective order, effective until December 2005, prohibited Zirko from abusing or intimidating Mary, listing others as protected persons but excluding Ballog. In October 2004, Zirko's chiropractor reported his murder-for-hire intentions to the Chicago police, who subsequently informed Palatine detectives, prompting further investigation into the situation.

The complaint asserts that Zirko has a history of domestic battery and protective order violations, all of which were documented in the Law Enforcement Automated Data System as mandated by the Domestic Violence Act. Officers Bertnik and Kraeger communicated their findings to Glenview police sergeant Johnson and detective Mazurkiewicz, informing them that Mary, who was living in Glenview, was in danger. Bertnik warned Mary to come to the police station immediately, where she was informed of Zirko's alleged intent to murder her. Mary acknowledged that Zirko posed a threat to her and her family. 

Despite this, the Palatine and Glenview officers decided against arresting Zirko but assured Mary of a 24-hour police watch, which included surveillance at her home and during her outings. However, there was no indication that the officers communicated any limitations on this protection. On October 21, 2004, Zirko was interviewed but declined to answer questions; his attorney claimed he did not intend to harm Mary. The officers did not arrest Zirko, nor did they inform Mary when they concluded their investigation.

From October 22 to December 13, 2004, Mary repeatedly requested the police to arrest Zirko or provide the promised supervision and protection. The complaint alleges that all involved officers failed to take necessary actions, despite knowing Zirko was violating the protective order and having probable cause to arrest him. Specific allegations against the officers include: failing to arrest or detain Zirko for his threats; neglecting to provide promised protection; not further investigating the murder plan; ignoring Mary’s pleas for assistance; failing to facilitate her transport to safety; and not intervening when she expressed a need for protection. Mary Lacey was identified as a member of the class protected by the Domestic Violence Act, having previously obtained an Order of Protection.

Mary Lacey died on December 13, 2004, as a result of the alleged willful and wanton conduct of certain officers. Kolbasky, representing Ballog, claimed the officers violated the Domestic Violence Act, which protects individuals abused by family or household members. Ballog was recognized as a protected person under this Act due to an Order of Protection obtained by Lacey on December 9, 2003. The complaint asserted that the villages of Palatine and Glenview were liable under the Act through a respondeat superior theory, alleging a duty to act in accordance with the Domestic Violence Act and to avoid willful and wanton conduct.

The trial court dismissed the complaint, ruling that the defendants were immune from liability under the Tort Immunity Act and that section 305 of the Domestic Violence Act, which holds police officers liable for willful and wanton conduct, did not apply since defendants were not enforcing the Act at the relevant time. The court also dismissed Ballog's claims, determining she was not covered by the Order of Protection.

On appeal, plaintiffs argued that the Tort Immunity Act did not nullify exceptions in the Domestic Violence Act, that willful and wanton conduct was adequately pled, and that a duty to Ballog existed under the Act. Defendants countered that they were absolutely immunized, section 305 did not override this immunity, Ballog was not protected, and that their actions did not constitute willful and wanton conduct due to lack of probable cause and jurisdictional issues. Additionally, amici curiae, including police chiefs, supported the defendants, asserting that the Domestic Violence Act was not triggered and that the defendants' duties were limited to immediate incidents of abuse, not continuous surveillance.

A dismissal under section 2-619(a)(9) of the Code is appropriate when a claim is defeated by affirmative matter that negates its legal effect. This motion can assert only specific defenses and cannot challenge the factual sufficiency of a complaint; such challenges must be addressed through a motion for summary judgment. The standard of review for a section 2-619 dismissal is de novo. Immunity serves as an affirmative matter supporting dismissal, with the burden of proof resting on the government entity claiming immunity. When a defendant moves for dismissal under this section, it concedes the complaint's legal sufficiency. The trial court must view pleadings favorably for the opposing party, and the affirmative matter must be evident from the complaint unless supported by additional evidence. The Tort Immunity Act provides governmental immunity from liability in various situations, including failures related to police protection. Sections 4-102 and 4-107 grant absolute immunity for certain police-related failures, while section 2-202 limits this immunity in cases of willful and wanton conduct. The Domestic Violence Act also provides immunity for law enforcement officers acting in good faith, with similar exceptions for willful and wanton misconduct. The plaintiffs argue on appeal that the absolute immunity in the Tort Immunity Act sections overrides the exception to immunity in the Domestic Violence Act.

Plaintiffs cite Calloway v. Kinkelaar and Moore to argue against defendants' claims of absolute immunity. The Illinois Supreme Court in Moore clarified that section 305 of the Domestic Violence Act applies to allegations of willful and wanton conduct by police officers failing to assist domestic violence victims, rather than sections 4-102 or 4-107 of the Tort Immunity Act. The Domestic Violence Act is intended to be liberally interpreted to recognize domestic violence as a serious crime, protect vulnerable populations, and improve the legal response to family violence. It mandates that police officers take immediate action to prevent further abuse and to inform victims of their rights when arrests are not made. The court established that section 305 limits civil liability for law enforcement agencies regarding breaches of duty under section 304, providing limited immunity for willful and wanton conduct in domestic violence cases. Defendants argue for the primacy of section 4-102 immunity, as noted in DeSmet, but the court acknowledged that other statutory provisions, such as the Domestic Violence Act, may create exceptions to this immunity. DeSmet confirmed the Moore decision that section 305 provides an exception to absolute immunity for law enforcement in domestic violence situations.

Plaintiffs argue that their complaint should not have been dismissed, alleging that defendants engaged in willful and wanton acts while enforcing the Domestic Violence Act. According to the Illinois Supreme Court ruling in Calloway, to establish a civil action under the Act, an injured party must demonstrate that they are entitled to protection, that law enforcement breached their statutory duties through willful and wanton conduct, and that this conduct caused the plaintiff's injuries. The Act requires law enforcement to take reasonable steps to assist individuals under protection when aware of threats and violations of protective orders.

In Calloway, as in the current case, defendants sought dismissal under section 2-619 of the Code, with the court tasked to assess whether the complaint's allegations were actionable. The definition of willful and wanton conduct in Illinois indicates a deliberate intention to harm or a conscious disregard for safety. Generally, allegations of such conduct present a factual question for a jury, as established in various Illinois cases, which assert that determining willful or wanton conduct is a jury's responsibility based on evidence.

The court noted that factual questions should only be removed from jury consideration when evidence overwhelmingly supports one side, as per Pedrick v. Peoria & Eastern R.R. Co. The case emphasizes that if a complaint's facts are sufficient, it can survive dismissal motions. In Sneed v. Howell, the court found that the plaintiff's claims of willful and wanton conduct, where a protective order was violated, warranted the denial of an early dismissal under sections 2-615 and 2-619 of the Code.

On June 23, 24, and July 1, 1996, the victim reported her former husband’s violations of a protective order to the police. On July 4, he confronted her at work, brandished a gun, and subsequently murdered her. The complaint against the City’s police department alleged negligent enforcement of the Domestic Violence Act due to their failure to act on the repeated violations of the protective order. The trial court dismissed the willful and wanton claims, but this decision was reversed on appeal, with the court finding sufficient factual allegations that could indicate willful and wanton conduct by the police. 

The victim had taken appropriate protective measures, including obtaining a plenary order of protection and reporting ongoing harassment, which was corroborated by an eyewitness. The court noted that the defendants had knowledge of the protective order and did not dispute this in their motion to dismiss. They also acknowledged having police reports detailing the victim's history of domestic violence but failed to provide evidence to refute the claim of probable cause for the former husband’s arrest. The absence of supporting materials from the defendants regarding their investigative decisions left open a genuine question of material fact about probable cause.

Additionally, the complaint asserted that the police had promised the victim 24-hour protection, which they failed to provide despite being aware of her abuser's intent to harm her. Although the defendants contended that this promise had expired by the time of the murder, they did not provide affidavits to clarify any intended time limitations or communicate when the protection would cease. Thus, genuine issues of material fact remained regarding both the promise of protection and the circumstances surrounding it.

Opinions from out-of-state courts lack authority in Illinois, as established in *Paulsen v. Cochran*. A North Carolina case, *Cockerham-Ellerbee v. Town of Jonesville*, noted that allegations of police promises of protection in domestic violence cases can prevent early dismissal due to governmental immunity. In the current complaint, defendants are accused of willful and wanton failure to investigate a murder plot adequately and to respond to repeated calls for help from Mary Lacey, culminating in the murders. The defendants did not provide details of their investigation or police call records that could refute the allegations, resulting in a genuine issue of material fact regarding their conduct. As such, the trial court should not have dismissed the case based on section 2-619 of the Illinois Code of Civil Procedure, as defendants did not meet their burden to prove immunity under the Domestic Violence Act. This Act limits law enforcement liability to willful and wanton acts, not merely negligent actions. Defendants argue that immunity applies only when officers are actively enforcing the law, a view supported by case law interpreting the Tort Immunity Act. Determining whether officers were enforcing the law is a factual question, but it may be resolved as a matter of law if the facts support only one conclusion. While responding to emergencies typically qualifies as enforcement, officers can also be considered enforcing the law outside of emergency responses.

A trial court errs by determining, as a matter of law, whether a police officer was enforcing a law when factual questions surround the officer's actions. In this case, plaintiffs claim defendants were enforcing the Domestic Violence Act by investigating a murder-for-hire plot against Mary, despite defendants arguing their focus was solely on the murder investigation. The defendants failed to provide legal or procedural justification for their actions. The police informed Mary about the plot, met her multiple times, and promised protection, actions that align with the Domestic Violence Act's requirement to prevent abuse. There is a genuine issue of material fact regarding which laws the officers were enforcing during their interactions with Mary in October 2004. 

Defendants assert that the time lapse between their last contact with Mary and the subsequent murders negates the claim that they were enforcing the Domestic Violence Act at the time of the murders. They reference previous case law, including Sanders, which found that a police officer was not enforcing the law when a significant change in circumstances occurred shortly after an emergency was resolved. However, contrasting cases demonstrate that the timing of police responses can differ significantly, and the court in Sneed found sufficient allegations of police misconduct despite a time gap between police contact and the triggering incident.

The court cannot conclude as a matter of law that the police were not enforcing the Domestic Violence Act on the date of the murders, nor can they dismiss the possibility that the officers' actions were a proximate cause of the deaths. Additionally, the plaintiffs contend that the trial court wrongfully dismissed claims involving Kolbasky concerning Ballog, arguing she was a protected person under the Domestic Violence Act due to her relationship with Mary. The defendants counter that Ballog was not protected since she was not named in the protective order. For a claim under the Domestic Violence Act, the plaintiff must establish that the injured party required protection under the Act.

Ballog does not qualify as a protected person under the Domestic Violence Act because she was not named in the protective order, which specifically identifies individuals without a broad "and family" provision. The plaintiffs' claim that the order implicitly protects family members lacks evidentiary support. Additionally, the Domestic Violence Act's Section 201(a)(iv) provides protection for individuals residing with an abused family member, but plaintiffs failed to demonstrate that Ballog lived with or housed Mary. The plaintiffs' argument that Ballog should be considered a protected person as a member of the general public is rejected, as the statutory language of the Domestic Violence Act explicitly identifies protected individuals and does not include the general public. It is concluded that the Tort Immunity Act does not supersede the Domestic Violence Act, the allegations of willful and wanton conduct are sufficient to withstand the motion to dismiss, and Ballog is not protected under the Act. The judgment dismissing Susan Lacey’s claims is reversed, while the dismissal of Kolbasky’s claims is affirmed, and the case is remanded for further proceedings. GARCIA and R.E. GORDON, JJ. concur.