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 Romeo ville, alleging willful and wanton conduct. The Village fileda motion to dismiss, arguing that it was immune from liabilitypursuant to the Local Gover nm ental and Governmental E mployees Tort Immunity Act (Act) (745 ILCS 10/1-101 et s eq . (West 2006)). The trial court granted the motion. We affirm. On May 9, 20 08, plaintiff’s daughter, Christine Jungkans,2

was driv ing 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 135thStreet. At the same time, Tomasz Maciaszek was driving east on 135th Street, approaching its intersection with Hal e Av enue. As Jungkans turned onto 135thStreet, 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 Landsc api ng alleged negligence. The count against the Village alleged willful and

wan ton conduct. The claim against the Village is the only o n e relevant to this appeal. The following facts are taken from plaintiff’s complaint. Gregory Gotches owns property at the southwest corner of the intersec tio n of Hale Avenue and 135thStreet in the Village. There are bushes located on the nor theast 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. O n N ovember 24, 2007, a Village representative inspected Got ches ’ propertyand deter mine d that the bushes violated a village ordin ance governing intersection visibility. The Village served3

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, Gotc hes’ w ife contacted the Village andasked wha t she needed to do to correct the problem. An employee from the Village code enforcement div isi on gave her th e name of several landscaping companies, including Syber t Lands caping . Mrs. Gotches contacted Sybert Landscaping, and Sybert agreed to trim the bushes. Sybert trimmed the bu shes and toldthe Gotches that the y no longer obstructed motorists’ vision. After the t rimmin g was complete, the Village sent Gotches another letter indicating that the violation had not been abated. Thereafter, Mrs. Gotches inform ed Vi llage code enforcement officer Cliff McChesney that Sybert had al rea dy trimmedthe bushes. McChesney told Mrs. Gotches that he thought th at the bushes could be trimmed further. However, he saidh e wouldask 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 comp laint alleges that the bushes on Gotches’ propertyviolated two sections of the Village’s code of ordinances that prohibit bushes from being locat ed ne ar intersections so as to obstruct motorists’ views. See Village of Romeoville, Ill inoi s Code of Ordinances app. A, §§ 159.014(G),4

159.030(D)(4)(q) (adopted February 7, 2007, and February 1, 2006, respectively). The co mpla int further alleges that the Village committedwillful and wanton conduc t by (1) failing to advise Gotches whether more trimming was necessary when McChesney pr omisedto do so, (2) failing to institute court procee ding s against Gotches to compel enforcement with its ordinance, (3) fa ilingto notify Gotches that a volunteer service could remed y the obstruction, (4) recommending that the problem be fixed by Sybert Lands cap ing, and (5) failing to advise Gotches that more trimming was necessary. Th e Vill age 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, ra ther t han 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 will ful and wanton conduct.5

Because her complaint alleges willful and wanton conduct, she contends t hat the trial court erred in dismissing her action against the Village. In 1965, the legi slat ure enacted the Local Governmental and Governmental Employ ees 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 publi c fun ds 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 legisl ature’ s intent by relying

on the language used in the Act, c ons truing each word in its context and ensuring tha t 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 readinto it exceptions, lim itat ions or conditions not expressly desc ribedby the plain language of the immunity. Ware , 375 Ill . App. 3d at 581-82, 873 N.E.2d at 951. Secti on 2-1 03 of the Act provides that "[a] local public6

entityis not liable for an injury caused by*** fai ling to enforce any law." 745 ILCS 10/2-103 ( West 2006). Section 2-105 immu nizes a local public entity for injuries caused by it s failure to make an inspection or making an i nadequ ate inspection of property. 745 ILCS 10/2-105 (West 2006). Section 2-106 grants immunity to local public entities for negligent and intentional oral prom ises or misrepresentations. 745 ILCS 10/2- 106 (West 2006). Those sections do not contain an excep tion for willful and wanton conduct. Bow ler 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 constitut es wil lful 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. Fitzpatrickv. City of Chic ago , 112 Ill. 2d 211, 221, 492 N.E.2d 1292, 1296 (1986). The required elements that a plaintiff must establishfor the application of section 2-202 are: (1) the municipalitywas 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 willful7

in nature; and (4) the injury occurred while the plaintiff was under the direct and i mmed iate control of municipal employees. Ware , 375 Ill. App. 3d at 584, 873 N.E.2d at 953. Ordinarily, the determination of whether a public e mployee is enforcing a law is a question of fact that must be determined bythe trier of fact in light of the circumstances in each case. Laceyv. Village of Palatine , 232 Ill. 2d349 , 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. Ap p. 3d 983, 888 N.E.2d 721; Ware , 375 Ill. App. 3d 574, 873 N.E.2d 944; Bowler , 376 Ill. App. 3d208, 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 i njur y 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 pub lic employees were doing8

nothingat 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 to ok so me 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, throughits employees, failed to in struct Gotches to trim his bushes further and failed to enforce its intersecti on v isibility ordinance. S uch 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 ordinan ce 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 2-1059

of the Act apply bas ed on the allegations contained in plaintiff’s complaint. Those secti ons 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.