Beyer v. City of Joliet

910 N.E.2d 621, 392 Ill. App. 3d 81
CourtAppellate Court of Illinois
DecidedJune 2, 2009
Docket3-08-0023
StatusPublished
Cited by3 cases

This text of 910 N.E.2d 621 (Beyer v. City of Joliet) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Beyer v. City of Joliet, 910 N.E.2d 621, 392 Ill. App. 3d 81 (Ill. Ct. App. 2009).

Opinions

JUSTICE SCHMIDT

delivered the opinion of the court:

Margaret Wilson was shot and killed by her husband, David C. Wilson. Diethard Beyer, as special administrator of the estate of Margaret Wilson, brought suit against the city of Joliet and three Joliet police officers (defendants). Decedent’s husband, David, also named in the complaint, is not involved in this interlocutory appeal. Plaintiff alleged that the death of Margaret was the result of defendants’ willful and wanton breach of their duties under the Illinois Domestic Violence Act of 1986 (750 ILCS 60/101 (West 2004)). Defendants’ motion to dismiss attacked plaintiff’s third amended complaint in two ways. Defendants argued that: (1) plaintiff failed to plead facts to show decedent was a protected person, specifically suggesting that plaintiff must have already obtained an order of protection; and (2) plaintiff failed to allege any willful and wanton acts or omissions on behalf of the police officers. The circuit court of Will County granted defendants’ motion to dismiss under section 2 — 619 of the Code of Civil Procedure (735 ILCS 5/2 — 619 (West 2006)). Pursuant to Supreme Court Rule 304(a), the trial court found no just reason to delay enforcement or appeal. 155 Ill. 2d R. 304(a).

On appeal, the predominate issue is whether an order of protection is a necessary condition precedent to a suit against police under the Domestic Violence Act. We hold that it is not.

We reverse and remand.

BACKGROUND

Plaintiffs third amended complaint alleges the following facts.

On July 20, 2004, Margaret Wilson called the Joliet police department on multiple occasions reporting that her husband, David Wilson, had repeatedly threatened her with physical harm and mentally abused her by verbally reminding her of the presence of guns in the house. Additionally, Margaret flagged down a Joliet police officer, advised him of the abuse, and asked for assistance. Joliet police officers responded to Margaret’s calls numerous times during the hours before her death. However, each time they left her home without investigation or assistance to Margaret. Furthermore, defendant police officers were told that there were weapons in the home, and despite being given unfettered access to the home, they chose not to investigate the presence of those weapons. In the early morning hours of July 21, 2004, David shot and killed Margaret in their home.

Defendants filed their motion to dismiss plaintiffs third amended complaint pursuant to section 2 — 619. 735 ILCS 5/2 — 619 (West 2004). The circuit court entered a dismissal with prejudice, finding that, as a matter of law, “in order to be a protected person under the Domestic Violence Act a person must obtain an order of protection or take steps to obtain protection under the Act.” See 735 ILCS 5/2 — 619 (West 2006).

ANALYSIS

Plaintiff contends that he pled sufficient facts to establish that his decedent was a protected person under the Domestic Violence Act (the Act). As this contention raises a question of law, the applicable standard of review is de novo. Advocate Health & Hospitals Corp. v. Bank One, N.A., 348 Ill. App. 3d 755, 759, 810 N.E.2d 500, 505 (2004); Van Meter v. Darien Park District, 207 Ill. 2d 359, 368, 799 N.E.2d 273, 278 (2003).

Generally, Illinois police officers enjoy absolute immunity for failure to provide police protection, prevent the commission of a crime, or make an arrest. 745 ILCS 10/4—102, 4 — 107 (West 2004). However, in 1986, the General Assembly enacted the Act, which provides a special duty exception to governmental immunity and deals specifically with cases where public officials fail to protect victims of domestic abuse. Calloway v. Kinkelaar, 168 Ill. 2d 312, 659 N.E.2d 1322 (1995).

Section 305 of the Act limits law enforcement liability to willful and wanton conduct. 750 ILCS 60/305 (West 2004). The supreme court in Calloway explained that an injured party can recover under the Act provided that “the injured party can establish that he or she is a person in need of protection under the Act, the statutory law enforcement duties owed to him or her were breached by the willful and wanton acts or omissions of law enforcement officers, and such conduct proximately caused plaintiffs injuries.” Calloway, 168 Ill. 2d at 324, 659 N.E.2d at 1328.

I. Order of Protection

Plaintiff first argues that Margaret was a protected person under the Act, despite not having an order of protection in place. We note at the outset that this argument mischaracterizes the trial court’s ruling. The trial court found, as a matter of law, that in order to be protected under the Act, a victim must either: (1) obtain an order of protection; or (2) take steps to be protected under the Act. Nonetheless, we will address plaintiff’s and defendants’ arguments on appeal regarding whether an order of protection is a necessary prerequisite to protection under the Act.

Plaintiff argues that the statutory language is the best indication of the legislative intent of the Act. Bonaguro v. County Officers Electoral Board, 158 Ill. 2d 391, 397, 634 N.E.2d 712, 714 (1994); People v. Olsson, 335 Ill. App. 3d 372, 374, 780 N.E.2d 816, 818 (2002). Section 201(a) of the Act states:

“(a) The following persons are protected by this Act:
(i) any person abused by a family or household member.” 750 ILCS 60/201(a) (West 2004).

When addressing the application of the Act, the Illinois Supreme Court specifically stated that statutory language “must be afforded its plain, ordinary, popularly understood meaning. [Citation.] When the language is unambiguous, the statute must be applied as written without resorting to other aids of construction.” Moore v. Green, 219 Ill. 2d 470, 479, 848 N.E.2d 1015, 1020 (2006). Therefore, under the plain language of the Act as set forth above, plaintiff contends that obtaining a protective order is not a prerequisite to bringing a suit under the Act.

Defendants argue that in order to fall within the Act’s limited exception to immunity, the plaintiff must qualify as a protected person by first obtaining an order of protection. Defendants claim their position is supported by the rulings and reasoning in Calloway v. Kinkelaar, 168 Ill. 2d 312, 659 N.E.2d 1322 (1995), Moore v. Green, 219 Ill.

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Wendling v. Milner
2021 IL App (5th) 190532 (Appellate Court of Illinois, 2021)
Beyer v. City of Joliet
910 N.E.2d 621 (Appellate Court of Illinois, 2009)

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Bluebook (online)
910 N.E.2d 621, 392 Ill. App. 3d 81, Counsel Stack Legal Research, https://law.counselstack.com/opinion/beyer-v-city-of-joliet-illappct-2009.