1

NOTICE

Decision filed 10/06/08. The text of

this dec ision m ay be changed or

corrected prior to the filing of a

Petition for Re hea ring o r the

disposition of the same.

NO. 5-06-0501

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

_________________________________________________________________________

JENNIFER KEENER, Individually and as ) Appeal from the

Administrator of the Estate of ) Circuit Court of

Chelsea Keener, Deceased, ) Williamson County.

)

Plaintiff-Appellant, )

)

v. ) No. 04-L-146

)

THE CITY OF HERRIN, ) Honorable

) Ronald R. Eckiss,

Defendant-Appellee. ) Judge, presiding.

_________________________________________________________________________

PRESIDING JUSTICE STEWART delivered the opinion of the court:

The plaintiff, Jennifer Keener (Jennifer), appeals from an order of the circuit court

of Williamson County granting a motion to dismiss her amended complaint in favor of the

defendant, the City of Herrin (Herrin). We reverse in part and remand.

BACKGROUND

Jennifer is the natural mother of Chelsea Keener (Chelsea). A vehicle struck and

killed Chelsea during the early morning hours of August 9, 2003, as she walked along a

public street in Herrin, Illinois. On July 30, 2004, Jennifer filed a complaint against Herrin,

and in her complaint, she alleged that Herrin was responsible for Chelsea's death under

theories of negligence and wilful and wanton conduct. Jennifer brought the complaint

individually and as the administrator of Chelsea's estate.

Jennifer alleged in her complaint that in the evening of August 8, 2003, and into the

early morning hours of August 9, 2003, Chelsea, who was 18 years old, consumed alcoholic

beverages to the point of intoxication. At approximately 3:30 a.m., officers for the Herrin
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police department took Chelsea into custody and charged her with the offense of underage

consumption of alcohol. Jennifer alleged that when Herrin police officers took Chelsea into

custody, Chelsea was incoherent and legally intoxicated with a blood-alcohol level of 0.18.

The Herrin police department was notified that an adult would come to the police station to

pick up Chelsea. However, at approximately 4:40 a.m., the Herrin police department

allowed Chelsea to leave the police station unattended, without any assistance, and while she

was still intoxicated. At approximately 5 a.m., a vehicle struck and killed Chelsea as she

walked on a street in Herrin.

Jennifer alleges that Herrin was guilty of negligent and wilful and wanton conduct

by allowing Chelsea to leave the custody of the police department unattended and

unsupervised while in an intoxicated state, failing to maintain Chelsea in custody until an

adult could pick her up, and failing to follow its own policies and procedures for handling

the arrest and release of an intoxicated minor. Herrin's motion to dismiss Jennifer's

complaint was granted, and on January 18, 2005, Jennifer filed an amended complaint which

added an additional count that alleged Herrin owed a special duty to Chelsea.

On June 30, 2005, Herrin filed a motion to dismiss the amended complaint. Attached

to the motion was an affidavit of Quinn Laird, the Herrin police officer who had arrested

Chelsea. On August 8, 2005, the parties, through their attorneys, appeared in court for a

case management conference. Although no record was made of the case management

conference, the parties do not dispute that the court agreed to take Herrin's motion to dismiss

under advisement to allow Jennifer's attorney to obtain the discovery deposition of the

arresting officer and file a response to the motion. Nevertheless, the circuit court made the

following docket entry:

"Attys. present for C.M.C. Rule on motion to dismiss on Sept. 9, 2005.

Plaintiff will stand on pleadings."
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On September 13, 2005, the circuit court dismissed Jennifer's amended complaint

with the following docket entry:

"Pending is defendant's motion to dismiss. The motion is granted and this case

is dismissed. Plaintiff has elected to stand on these pleadings so no amendment of

the complaint is needed. This cause is dismissed and there is no reason to delay any

appeal herein. Clerk to close file. Judicial secretary to send a copy of record sheet

to all attorneys."

Unfortunately, no judicial secretary and no one from the clerk's office sent a copy of the

record sheet to the attorneys or otherwise notified the attorneys that the amended complaint

had been dismissed, and neither party knew of the entry of the dismissal order. 

Being unaware of the dismissal order, the parties conducted the discovery deposition

of Officer Laird on March 13, 2006. On April 17, 2006, Jennifer filed her response to

Herrin's motion to dismiss, which included references to Laird's testimony from his

deposition. On April 20, 2006, Herrin's attorney sent a letter to the circuit judge assigned

to the case, requesting that the court conduct a hearing to address the issues that the parties

believed were still pending in the motion to dismiss and in Jennifer's response to the motion.

In the letter, Herrin's attorney asserted that the court had heard argument and granted

Jennifer's attorney "leave to file a response to the Motion to Dismiss Amended Complaint

before [the court] ruled on our Motion to Dismiss." Herrin's attorney further asserted, "It

is my recollection you took the matter under advisement." Upon receipt of this letter, the

court set the case for a status hearing.

On August 7, 2006, the parties appeared in court for a status hearing, and both

attorneys learned for the first time that the amended complaint had been dismissed with

prejudice on September 13, 2005. The circuit court acknowledged that the docket entry had

not been mailed to the attorneys of record. The circuit court made the following docket
_____________

1

 Although Jennifer alleged that a transcript of the deposition had been submitted to

the court with her response to the motion to dismiss, the deposition is not included in the

record on appeal.

4

entry at the conclusion of the August 7, 2006, status hearing:

"Attys appear. Motion to dismiss is reconsidered upon written motion to be

submitted. Review on Aug. 25, 2006."

On August 17, 2006, Jennifer filed a "Motion to Reconsider." The motion was filed

pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West

2006)). In her motion, Jennifer requested that the court reconsider its prior ruling on the

motion to dismiss in light of the additional facts revealed in the discovery deposition of

Officer Quinn Laird

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 and grant appropriate relief pursuant to section 2-1401. Jennifer

further alleged that she had exercised due diligence in obtaining the deposition in that both

parties, unaware of the dismissal, had continued to litigate this case. She also alleged due

diligence in filing her section 2-1401 motion once she learned of the dismissal.

On August 25, 2006, the circuit court made the following docket entry:

"The motion to reconsider is reviewed. The motion is granted. This court

reconsiders its previous ruling on Sept. 13, 2005. After further considering the

motion to dismiss[,] same is granted again. This case is dismissed again. Judicial

secretary to send copy of record sheet to all attorneys of record."

Jennifer filed a notice of appeal from the circuit court's August 25, 2006, order. In

her notice of appeal, Jennifer specifically provided as follows: "The only portion of this

Order being appealed by the Plaintiff-Appellant is that portion granting the Defendant's

Motion to Dismiss Amended Complaint." Herrin has filed no appeal or cross-appeal from

the circuit court's order granting Jennifer's section 2-1401 motion for relief from the final
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order entered on September 13, 2005.

ANALYSIS

The first issue we must address is the jurisdiction of this court to consider the merits

of Jennifer's appeal. Although the parties did not initially raise the issue of jurisdiction, we

entered a show-cause order, sua sponte, requiring Jennifer to show cause why her appeal

should not be dismissed for a lack of jurisdiction. We then decided to take the issue of

jurisdiction with the case and directed the parties to brief the issue. We now find that we

have jurisdiction over Jennifer's appeal from the August 25, 2006, order of the circuit court

dismissing her amended complaint.

Supreme Court Rule 303 (210 Ill. 2d R. 303) establishes the requirements for

appellate court jurisdiction. Rule 303(a)(1) provides, in pertinent part, as follows:

"[T]he notice of appeal must be filed with the clerk of the circuit court within

30 days after the entry of the final judgment appealed from[] or, if a timely posttrial

motion directed against the judgment is filed, whether in a jury or a nonjury case,

within 30 days after the entry of the order disposing of the last pending postjudgment

motion ***." 210 Ill. 2d R. 303(a)(1).

In situations where a party fails to file a timely notice of appeal under Rule 303(a)(1),

the party may seek an extension of time to file a notice of appeal under Rule 303(d) (210 Ill.

2d 303(d)). Rule 303(d) provides, in pertinent part, as follows:

"On motion supported by a showing of reasonable excuse for failure to file a

notice of appeal on time *** filed in the reviewing court within 30 days after

expiration of the time for filing a notice of appeal, the reviewing court may grant

leave to appeal ***." 210 Ill. 2d R. 303(d).

Litigants must strictly comply with these jurisdictional rules governing appeals, and

neither a circuit court nor an appellate court has the authority to excuse compliance with the
6

filing requirements of the rules. Mitchell v. Fiat-Allis, Inc., 158 Ill. 2d 143, 632 N.E.2d

1010 (1994); Clark v. Han, 272 Ill. App. 3d 981, 651 N.E.2d 549 (1995). The timely filing

of a notice of appeal is mandatory and jurisdictional. Clark, 272 Ill. App. 3d at 984, 651

N.E.2d at 551. Supreme Court Rule 303(a) requires that a notice of appeal be filed within

30 days from the entry of a final judgment. 210 Ill. 2d R. 303(a). The effective date of the

judgment determines when the time for filing a notice of an appeal under Rule 303(a) begins

to run. Granite City Lodge No. 272, Loyal Order of the Moose v. City of Granite City, 141

Ill. 2d 122, 565 N.E.2d 929 (1990) (Granite City Lodge). The effective date of a final

judgment is when the court's action is publicly expressed, in words, and at the situs of the

proceeding. Granite City Lodge, 141 Ill. 2d at 123, 565 N.E.2d at 929. "A judgment

'becomes public at the situs of the proceeding when it is filed with the clerk of the court.' "

Granite City Lodge, 141 Ill. 2d at 126, 565 N.E.2d at 931 (quoting People ex rel. Schwartz

v. Fagerholm, 17 Ill. 2d 131, 137, 161 N.E.2d 20, 24 (1959)). 

In the present case, the circuit court, by a docket entry, entered a final order

dismissing the amended complaint on September 13, 2005. The docket entry also directed

the circuit court's judicial secretary to send a copy of the docket entry to all the attorneys of

record. This never occurred, and neither party's attorney received notice of the September

13, 2005, order. Pursuant to Supreme Court Rule 272 (137 Ill. 2d R. 272), the judgment

dismissing the amended complaint became final when it was entered of record on September

13, 2005, and the time for the filing of a notice of appeal began to run on that day.

Therefore, Jennifer had 30 days from September 13, 2005, to file a notice of appeal, and she

had an additional 30 days to file a motion for extension of time to file a notice of appeal

under Supreme Court Rule 303(d) (210 Ill. 2d R. 303(d)). She did neither because she did

not know of the existence of the adverse judgment. Herrin, therefore, cites Granite City

Lodge No. 272, Loyal Order of the Moose v. City of Granite City, 141 Ill. 2d 122, 565
7

N.E.2d 929 (1990), and argues that we lack jurisdiction to hear Jennifer's appeal of the

dismissal of the amended complaint.

In Granite City Lodge, the Illinois Supreme Court held that the time period for filing

a notice of appeal is not tolled because the parties failed to receive actual notice of an order

disposing of a posttrial motion. Granite City Lodge, 141 Ill. 2d at 126-27, 565 N.E.2d at

931. The court held that actual notice to the parties is not required, so long as the order

appealed from is expressed publicly, in words, and at the situs of the proceeding. Granite

City Lodge, 141 Ill. 2d at 127, 565 N.E.2d at 931. 

We find Granite City Lodge distinguishable from the present case because Jennifer

did not appeal the September 13, 2005, dismissal order. Instead, Jennifer's attorney filed a

motion requesting relief from the final judgment pursuant to section 2-1401 of the Code of

Civil Procedure (735 ILCS 5/2-1401 (West 2006)). On August 25, 2006, the circuit court

granted Jennifer's section 2-1401 petition, but the court subsequently, albeit in the same

order, dismissed the amended complaint after considering the new evidence presented in

Jennifer's response to the motion to dismiss the amended complaint. Jennifer's appeal from

the August 25, 2006, order requires a different analysis than the analysis set forth in Granite

City Lodge because Granite City Lodge did not involve an appeal following proceedings on

a section 2-1401 petition. 

Section 2-1401 provides a comprehensive statutory procedure by which a judgment

may be vacated more than 30 days after the entry of the judgment. 735 ILCS 5/2-1401

(West 2006); Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95, 776 N.E.2d 195

(2002). A section 2-1401 petition, "although filed in the same proceeding, is the

commencement of a new cause of action and is not a continuation of the proceeding in

which the prior judgment was entered." Childers v. Kruse, 297 Ill. App. 3d 70, 77, 696

N.E.2d 1253, 1258 (1998). The purpose of a section 2-1401 petition is to bring before the
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court matters of fact not appearing in the record, which if known to the court at the time the

judgment was entered would have prevented the judgment's entry. Cartwright v. Goodyear

Tire & Rubber Co., 279 Ill. App. 3d 874, 882, 665 N.E.2d 365, 371 (1996). A section 2-

1401 petition must set forth a meritorious claim or defense and the petitioner's due diligence

in both presenting the claim or defense and filing the petition. Klein v. La Salle National

Bank, 155 Ill. 2d 201, 205, 613 N.E.2d 737, 739 (1993). An order granting or denying a

section 2-1401 petition is a final and appealable order. Sarkissian, 201 Ill. 2d at 102, 776

N.E.2d at 200; 210 Ill. 2d R. 304(b)(3). "[A]n appeal from the [grant or] denial of a section

2-1401 petition is a proceeding wholly separate from an appeal from the original judgment."

Childers, 297 Ill. App. 3d at 77, 696 N.E.2d at 1258.

Herrin asserts that a section 2-1401 petition may not be used to extend the time for

filing an appeal, and it cites Mitchell v. Fiat-Allis, Inc., 158 Ill. 2d 143, 632 N.E.2d 1010

(1994), in support of its argument that this court has no jurisdiction in this appeal. We find

Mitchell distinguishable from the present case. In Mitchell, the employer filed in the circuit

court a complaint for the administrative review of an Industrial Commission decision that

was favorable to the claimant. The circuit court entered a final order setting aside the order

of the Industrial Commission, but the parties were never notified that the order had been

entered. The claimant learned of the entry of the order more than 30 days after it had been

entered. When the circuit court learned that the parties had not been notified of the order,

it directed the claimant to file a section 2-1401 petition. Mitchell, 158 Ill. 2d at 147, 632

N.E.2d at 1011. The court subsequently granted the petition and then reentered the same

judgment. Mitchell, 158 Ill. 2d at 147, 632 N.E.2d at 1011. The claimant appealed from the

judgment that had been reentered, and the employer cross-appealed from the circuit court's

decision granting the section 2-1401 petition. Mitchell, 158 Ill. 2d at 147, 632 N.E.2d at

1011. The appellate court determined that it had jurisdiction of the claimant's appeal. 
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The supreme court held that the appellate court lacked jurisdiction over the appeal

from the reentered judgment because the circuit court erred in granting the claimant's section

2-1401 petition. Mitchell, 158 Ill. 2d at 148-49, 632 N.E.2d at 1012. The Mitchell court

reasoned that even though counsel for the appellant had not received actual notice of the

entry of the judgment, counsel was required to monitor the progress of the case to ensure

that appeals were timely filed. Mitchell, 158 Ill. 2d at 150, 632 N.E.2d at 1013. The court

held that the failure of a party to receive notice of the entry of a final order is not a sufficient

ground to vacate the order under section 2-1401. Mitchell, 158 Ill. 2d at 149, 632 N.E.2d

at 1012. Likewise, the court held that relief under section 2-1401 is inappropriate where the

party seeking relief is simply requesting that the same order be reentered in order to restart

the time to file a notice of appeal. Mitchell, 158 Ill. 2d at 149, 632 N.E.2d at 1012. 

The present case is distinguishable from Mitchell in two important respects. First, in

Mitchell, the sole basis of the section 2-1401 petition was the lack of notice of the entry of

the judgment, and apparently the petition merely requested a reentry of the same judgment.

Mitchell, 158 Ill. 2d at 149, 632 N.E.2d at 1012. Second, in Mitchell, the employer filed a

cross-appeal from the decision of the circuit court granting the section 2-1401 petition.

Mitchell, 158 Ill. 2d at 147, 632 N.E.2d at 1011. 

Jennifer's section 2-1401 petition did not simply request the circuit court to reenter

the same dismissal order to restart her appeal clock; instead, she presented the circuit court

with new evidence (deposition testimony of Officer Laird) of which the court had no

knowledge when it entered its first dismissal order. Jennifer was not seeking the reentry of

the same order. She was urging the court to deny the defendant's motion to dismiss. A

section 2-1401 petition is the proper mechanism for bringing this additional evidence to the

circuit court's attention. The very purpose of section 2-1401 is to allow parties to bring

before the trial court facts that do not appear on the record (Sakun v. Taffer, 268 Ill. App.
10

3d 343, 352, 643 N.E.2d 1271, 1278 (1994)), and these motions must be decided "within

the framework of the legal philosophy that litigation should, if possible, be determined on

the merits according to the substantive rights of the parties" (Robinson v. Commonwealth

Edison Co., 238 Ill. App. 3d 436, 441, 606 N.E.2d 615, 618 (1992)). Jennifer's section 2-

1401 petition was not filed merely as a subterfuge to extend the time requirement of Rule

303(a). Nothing in Mitchell suggests that a litigant, aggrieved by an adverse ruling of which

she received no notice, may not pursue a legitimate section 2-1401 petition, based upon

evidence not appearing of record, in order to persuade the court to vacate the earlier order.

Although the Mitchell court described its own ruling as appearing to be a "harsh

result" (Mitchell, 158 Ill. 2d at 151, 632 N.E.2d at 1013), the Mitchell decision is completely

consistent with Illinois cases which have long held that a litigant is obligated to monitor his

case and that section 2-1401 may not be used to relieve a litigant of his own negligence or

mistakes or those of his trial counsel (e.g., Esczuk v. Chicago Transit Authority, 39 Ill. 2d

464, 236 N.E.2d 719 (1968)). It must be remembered that, in Mitchell, the supreme court

reversed the appellate court decision affirming the trial court's grant of the claimant's section

2-1401 petition. Thus, Mitchell simply stands for the proposition that an allegation of a lack

of notice, standing alone, is insufficient to justify relief under section 2-1401.

Because of the second distinction between this case and Mitchell, however, we need

not, and may not, determine the sufficiency of Jennifer's section 2-1401 petition in this

appeal. The August 25, 2006, docket entry from which Jennifer appealed contained two

separate orders in two separate and distinct proceedings. First, it granted Jennifer's section

2-1401 petition, as a result of which the September 13, 2005, judgment was vacated and

Jennifer's underlying lawsuit was reinstated. Second, it dismissed Jennifer's amended

complaint. Jennifer only appealed the dismissal of her amended complaint. Herrin filed no

appeal or cross-appeal from the circuit court's order granting Jennifer's section 2-1401
_____________

2

 We reject the decision of the Fourth District in In re K.A., 335 Ill. App. 3d 1095,

1099, 782 N.E.2d 937, 940 (2003), a case that resulted in each member of the panel writing

a separate opinion. The majority in that case treated the failure to cross-appeal from the

grant of a section 2-1401 petition as a matter of waiver, rather than jurisdiction.

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petition. Accordingly, we have no jurisdiction to determine whether the circuit court was

correct in vacating its previous order.2 

In Granite City Lodge and Mitchell the supreme court made it clear that we should

protect our jurisdiction and that once a litigant's time to appeal or file a late notice of appeal

has expired, a lack of notice of the entry of a final judgment is insufficient grounds to extend

the time for filing a notice of appeal or to vacate the judgment under section 2-1401. We

see no reason to be any less protective of our jurisdiction when a party fails to perfect an

appeal from a section 2-1401 ruling of which it has notice than we would be when a party

fails to appeal a final judgment of which she is not notified. Here, the circuit court entered

an order vacating its previous judgment, thereby reinstating Jennifer's cause of action.

Herrin chose not to appeal that order. It was only upon this court's order that the issue of

jurisdiction was raised in this case. Having fully reviewed the record, we find that we are

without jurisdiction to review the circuit court's August 25, 2006, order granting Jennifer's

section 2-1401 petition. We further find that Jennifer has properly perfected her appeal from

the circuit court's August 25, 2006, order dismissing her amended complaint. Accordingly,

we will proceed to determine the merits of Jennifer's appeal. 

Jennifer's amended complaint alleged five counts against Herrin. Counts I and II

alleged negligence, counts III and IV alleged wilful and wanton conduct, and count V

alleged the special-duty exception to theLocal Governmental and Governmental Employees

Tort Immunity Act (the Tort Immunity Act) (745 ILCS 10/1-101 et seq. (West 2006)). The
12

circuit court dismissed Jennifer's amended complaint, and she appeals that ruling. For the

reasons explained below, we hold that the circuit court ruled correctly in dismissing the

counts that alleged negligence and special duty, but we hold that the circuit court erred in

dismissing the counts that alleged wilful and wanton conduct. 

Under the common law in Illinois, a governmental body was absolutely immune from

all tort liability. "The original basis of [this] immunity rule has been called a 'survival of the

medieval idea that the sovereign can do no wrong,' or that 'the King can do no wrong.' (38

Am. Jur., Mun. Corps., sec. 573, p. 266.)" Molitor v. Kaneland Community Unit District

No. 302, 18 Ill. 2d 11, 20, 163 N.E.2d 89, 93 (1959). In Molitor, the Illinois Supreme Court

abolished this doctrine of sovereign immunity. Molitor, 18 Ill. 2d at 21-22, 163 N.E.2d at

94. In response to Molitor, however, the legislature passed the Tort Immunity Act in 1965

(Ill. Rev. Stat. 1965, ch. 85, par. 1-101 et seq. (now 745 ILCS 10/1-101 et seq. (West

2006))), and the act restored immunity for governmental entities in certain circumstances.

Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 43, 697 N.E.2d 699, 707 (1998). After the

passage of the Tort Immunity Act, article XIII, section 4, of the Illinois Constitution of 1970

(Ill. Const. 1970, art. XIII, §4) also abolished sovereign immunity and made the legislature

the ultimate authority to determine under what circumstances units of local government

would be immune from tort liability. DeSmet v. County of Rock Island, 219 Ill. 2d 497, 506,

848 N.E.2d 1030, 1036 (2006).

Accordingly, since the abolishment of sovereign immunity in Illinois, a unit of local

government is liable in tort to the same extent as a private party unless an immunity

established by the legislature in the Tort Immunity Act applies. Van Meter v. Darien Park

District, 207 Ill. 2d 359, 368-69, 799 N.E.2d 273, 279 (2003). The Tort Immunity Act does

not establish any new duties for governmental entities but "merely codifies those duties

existing at common law, to which the subsequently delineated immunities apply." Barnett
13

v. Zion Park District, 171 Ill. 2d 378, 386, 665 N.E.2d 808, 812 (1996). Because the Tort

Immunity Act "was enacted in derogation of the common law, it must be strictly construed."

Van Meter, 207 Ill. 2d at 368, 799 N.E.2d at 279.

The immunities established in the Tort Immunity Act operate as affirmative defenses,

and the governmental entity bears the burden of properly raising and proving its immunity

under the act. Van Meter, 207 Ill. 2d at 370, 799 N.E.2d at 280. Section 2-619(a)(9) of the

Code of Civil Procedure permits an involuntary dismissal where "the claim asserted against

defendant is barred by other affirmative matter avoiding the legal effect of or defeating the

claim." 735 ILCS 5/2-619(a)(9) (West 2006). Immunity under the Tort Immunity Act is an

affirmative matter properly raised in a motion to dismiss filed pursuant to section 2-

619(a)(9) of the Code of Civil Procedure. Van Meter, 207 Ill. 2d at 367, 799 N.E.2d at 278.

When a court rules on a section 2-619 motion to dismiss, it "must interpret all

pleadings and supporting documents in the light most favorable to the nonmoving party."

In re Chicago Flood Litigation, 176 Ill. 2d 179, 189, 680 N.E.2d 265, 270 (1997). "The

moving party thus admits the legal sufficiency of the complaint[] but asserts an affirmative

defense or other matter to defeat the plaintiff's claim." Van Meter, 207 Ill. 2d at 367, 799

N.E.2d at 278. Our review of a section 2-619 dismissal is de novo. Epstein v. Chicago

Board of Education, 178 Ill. 2d 370, 383, 687 N.E.2d 1042, 1049 (1997).

In the present case, the pleadings and supporting documents interpreted in the light

most favorable to Jennifer establish that Officer Laird of the Herrin police department

arrested Chelsea for underage consumption of alcohol at approximately 3:30 a.m. on August

9, 2003, and she had a blood-alcohol level of 0.18 at the time of her arrest. Chelsea had

enough money to post bond, but Officer Laird agreed to let Chelsea sign a personal

recognizance bond if she would arrange for a sober person to pick her up at the police

station. Chelsea contacted an adult by telephone, and the adult spoke with Officer Laird and
14

informed him that she would arrive shortly to pick up Chelsea at the police department.

However, at approximately 4:40 a.m., before Chelsea's ride arrived, Herrin's police officers

allowed Chelsea to leave the police department on her own, unattended, and intoxicated.

At approximately 5 a.m., while walking along a public street in Herrin, Chelsea was struck

and killed by a vehicle. 

Jennifer's complaint alleged that Herrin is liable in tort for Chelsea's death, and we

must determine whether Herrin is entitled to immunity under the applicable provisions of

the Tort Immunity Act. Herrin argues that it is entitled to absolute immunity pursuant to

sections 4-102 and 4-107 of the Tort Immunity Act (745 ILCS 10/4-102, 4-107 (West

2006)). 

Section 4-102 of the Tort Immunity Act provides, in pertinent part, "Neither a local

public entity nor a public employee is liable ***, if police protection service is provided, for

failure to provide adequate police protection or service ***." 745 ILCS 10/4-102 (West

2006). This section provides absolute immunity, and "when the applicable provisions of the

Tort Immunity Act provide absolute immunity, the plaintiff's claim is barred." Moore v.

Green, 219 Ill. 2d 470, 478, 848 N.E.2d 1015, 1020 (2006). Section 4-102's language

immunizes both negligent and wilful and wanton conduct. Hernandez v. Kirksey, 306 Ill.

App. 3d 912, 915, 715 N.E.2d 669, 672 (1999). Likewise, section 4-107 of the Tort

Immunity Act provides, "Neither a local public entity nor a public employee is liable for an

injury caused by the failure to make an arrest or by releasing a person in custody." 745 ILCS

10/4-107 (West 2006). This section also provides absolute immunity. Moore, 219 Ill. 2d

at 478, 848 N.E.2d at 1020.

However, section 2-202 of the Tort Immunity Act (745 ILCS 10/2-202 (West 2006))

limits absolute immunity under certain circumstances. Section 2-202 provides, "A public

employee is not liable for his act or omission in the execution or enforcement of any law
15

unless such act or omission constitutes willful and wanton conduct." (Emphasis added.)

745 ILCS 10/2-202 (West 2006). Accordingly, we are confronted with an issue of statutory

construction to determine whether absolute immunity provided in sections 4-102 and 4-107

or limited immunity provided in section 2-202 applies to Jennifer's claim.

"The cardinal rule of statutory construction is to ascertain and give effect to the

legislature's intent." Moore, 219 Ill. 2d at 479, 848 N.E.2d at 1020. Generally, the plain

meaning of the statute is the best indication of the legislature's intent, but when the plain

language of one statute apparently conflicts with the plain language of another statute, we

will attempt to construe them together, in pari materia, where that interpretation is

reasonable. Moore, 219 Ill. 2d at 479, 848 N.E.2d at 1020-21. The plain language of

sections 4-102 and 4-107 of the Tort Immunity Act provides blanket immunity in general

to police services, but the plain language of section 2-202 carves out a wilful-and-wanton

exception to this blanket immunity in limited circumstances. 

In Doe v. Calumet City, 161 Ill. 2d 374, 389-90, 641 N.E.2d 498, 505 (1994), the

Illinois Supreme Court held that there are two exceptions to the absolute immunity provided

under sections 4-102 and 4-107: (1) the special-duty exception to the Tort Immunity Act and

(2) wilful and wanton conduct in the execution or enforcement of law provided in section

2-202 of the Tort Immunity Act. In Doe, a police officer took control of a crime scene, and

the officer prevented rescuers from entering an apartment where an intruder was raping a

young girl and threatening her younger brother. Doe, 161 Ill. 2d at 382-83, 641 N.E.2d at

502. The court held that under the facts of that case, section 2-202 immunity applied to the

plaintiffs' claim against one of the officers at the scene and against his municipal employer

because the officer was executing and enforcing the law when he took control of the entire

crime scene. Doe, 161 Ill. 2d at 390-91, 641 N.E.2d at 505-06. The court held that the

plaintiffs could maintain an action against the police officer based on wilful and wanton acts
16

or omissions in the officer's execution or enforcement of the laws pursuant to section 2-202

of the Tort Immunity Act. Doe, 161 Ill. 2d at 390-91, 641 N.E.2d at 505-06.

In Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 50, 697 N.E.2d 699, 710 (1998),

the supreme court held that the special-duty exception to the Tort Immunity Act violated the

Illinois Constitution's provisions governing sovereign immunity (Ill. Const. 1970, art. XIII,

§4) as well as the separation of powers (Ill. Const. 1970, art. II, §1). The court did not,

however, abrogate the wilful-and-wanton exception to absolute immunity provided in

section 2-202 as discussed in Doe. Accordingly, after Zimmerman, a plaintiff cannot

"escape the statutory immunities granted [to] municipalities" by "proving facts that show the

existence of a special duty." Doe, 161 Ill. 2d at 390, 641 N.E.2d at 505. However, a

plaintiff can escape absolute immunity by "proving willful and wanton conduct" in the

execution or enforcement of any law. Doe, 161 Ill. 2d at 390, 641 N.E.2d at 505.

We also note that in addition to the wilful-and-wanton exception provided in section

2-202 of the Tort Immunity Act, the Illinois Supreme Court has also found a wilful-andwanton exception to absolute immunity in section 305 of the Illinois Domestic Violence Act

of 1986 (750 ILCS 60/305 (West 2006)). See Moore v. Green, 219 Ill. 2d 470, 489-90, 848

N.E.2d 1015, 1026-27 (2006).

Since we hold that section 2-202 of the Tort Immunity Act (745 ILCS 10/2-202

(West 2006)) establishes a wilful-and-wanton exception to blanket immunity, we must

determine whether Jennifer's claim falls within the plain language of that section. Under

section 2-202's plain language, its applicability depends on the nature of the alleged

governmental activity. Section 2-202 provides that municipalities are not shielded from

liability for wilful and wanton acts or omissions "in the execution or enforcement of any

law." 745 ILCS 10/2-202 (West 2006). Accordingly, we must determine whether Jennifer's

complaint alleges acts or omissions on the part of Herrin in executing or enforcing any law.
17

In Fatigato v. Village of Olympia Fields, 281 Ill. App. 3d 347, 352, 666 N.E.2d 732,

736 (1996), two police officers responded to a domestic disturbance. The officers told a

highly intoxicated man to leave his home, and they permitted him to drive away in his

vehicle. Shortly after he left, the intoxicated driver crossed the median of an interstate and

collided head-on with another vehicle. Fatigato, 281 Ill. App. 3d at 352, 666 N.E.2d at 736.

The intoxicated driver was killed, and the occupants in the oncoming vehicle were seriously

injured. Fatigato, 281 Ill. App. 3d at 352, 666 N.E.2d at 736. The injured motorists

brought a lawsuit against the police officers and the village which employed the police

officers, alleging that they were liable for wilful and wanton conduct when the officers

directed the intoxicated man to leave his home and allowed him to drive while intoxicated.

Fatigato, 281 Ill. App. 3d at 348, 666 N.E.2d at 734. The Fatigato court reversed the trial

court's summary judgment in favor of the defendants and held that under the facts of that

case, the officers and the village could be held liable for injuries proximately caused by

wilful and wanton conduct in the enforcement and execution of the law pursuant to section

2-202 of the Tort Immunity Act. Fatigato, 281 Ill. App. 3d at 356-57, 666 N.E.2d at 739.

Likewise, in Ozik v. Gramins, 345 Ill. App. 3d 502, 515, 799 N.E.2d 871, 882 (2003),

the court found that the immunity contained in section 2-202 of the Tort Immunity Act

applied where village police officers stopped a drunk driver and issued him citations but

allowed him to drive away. The complaint alleged that the officers knew or should have

known that the driver was both underage and intoxicated. After the officers let him drive

away, the driver had an accident that killed his passenger. Ozik, 345 Ill. App. 3d at 504, 799

N.E.2d at 873.

We find the facts of the present case to be comparable to Fatigato and Ozik, and we

hold that section 2-202 immunity applies to Jennifer's claim. Similar to the police officers

in Fatigato and Ozik, Herrin's police officer responded to a situation involving an
18

intoxicated person. The Herrin police officer arrested Chelsea for underage consumption

of alcohol, and he was executing and enforcing the law when he took her into his custody.

At that point, Herrin's police department owed Chelsea a duty not to engage in wilful and

wanton conduct. In Fatigato and Ozik, the police officers exercised control at the scene but

allowed intoxicated drivers to leave their control by allowing the intoxicated drivers to drive

away in vehicles. The intoxicated drivers subsequently caused injuries or death to others.

In the present case, Herrin's police officers had similar control over Chelsea after her arrest,

but the officers allowed Chelsea, an intoxicated pedestrian, to leave the police station

unsupervised. A short time later, a vehicle struck and killed her while she walked the streets

of Herrin. The same principles outlined in Fatigato and in Ozik apply in the present case.

Jennifer alleged that Chelsea's death resulted from Herrin's wilful and wanton act of

releasing control over an intoxicated pedestrian onto Herrin's streets, unsupervised and

without a ride from a responsible adult. Jennifer's allegations, viewed in the light most

favorable to her, create triable issues of fact concerning Herrin's liability for wilful and

wanton acts.

Herrin cites DeSmet v. County of Rock Island, 219 Ill. 2d 497, 848 N.E.2d 1030

(2006), in support of its argument, but we find DeSmet supports our holding that the circuit

court erred in dismissing the wilful-and-wanton counts. In DeSmet, a caller reported seeing

a vehicle that had been traveling at a high rate of speed leave the roadway and run into a

ditch; no one from the defendant's police department responded to the accident, and the

driver died. DeSmet, 219 Ill. 2d at 500-02, 848 N.E.2d at 1034-35. The driver's estate filed

a lawsuit against the county and alleged wilful and wanton conduct for failing to send any

assistance. DeSmet, 219 Ill. 2d at 502, 848 N.E.2d at 1035. The DeSmet court held that the

county was entitled to blanket immunity under section 4-102 of the Tort Immunity Act

because the plaintiff's allegations fell under the statutory umbrella of police protection
19

services contained in section 4-102. DeSmet, 219 Ill. 2d at 512, 848 N.E.2d at 1040. 

The DeSmet court held that section 2-202 of the Tort Immunity Act did not apply

under the facts of that case because the police had not responded to the scene. DeSmet, 219

Ill. 2d at 520, 848 N.E.2d at 1045 ("the police in this case did not respond at all"). The court

emphasized the importance of police "control" as a requirement for section 2-202 immunity:

"When an officer does respond to a call, *** he or she exercises a degree of control over the

situation and may well alter the circumstances at the scene for better–or worse." DeSmet,

219 Ill. 2d at 521, 848 N.E.2d at 1045. Under those circumstances, the legislature intended

for police officers to have immunity for negligence, but not for wilful and wanton acts.

DeSmet, 219 Ill. 2d at 520, 848 N.E.2d at 1045. Accordingly, in DeSmet, because the

officers did not respond at all and did not exercise any control, the court applied section 4-

102 of the Tort Immunity Act since the status quo was "not altered to the detriment of those

present." DeSmet, 219 Ill. 2d at 521, 848 N.E.2d at 1045.

The present case is distinguishable from the facts in DeSmet because a Herrin police

officer did respond and arrested Chelsea for underage consumption of alcohol. By doing

so, the officer altered Chelsea's situation, and Herrin then owed Chelsea a duty not to engage

in wilful and wanton acts. DeSmet, 219 Ill. 2d at 521, 848 N.E.2d at 1045. Accordingly,

under the reasoning set forth in DeSmet, section 2-202 immunity applies to Jennifer's claim,

rather than the blanket immunity provided in sections 4-102 and 4-107 of the Tort Immunity

Act. 

We hold that the circuit court erred in granting Herrin's motion to dismiss counts III

and IV of the amended complaint that alleged that Chelsea's death resulted from Herrin's

wilful and wanton conduct. Herrin is not entitled to blanket immunity with respect to those

counts, and we remand for a jury to determine the issues raised in those claims. We affirm

the circuit court's dismissal of counts I, II, and V. Counts I and II alleged negligence, and
20

Herrin is entitled to immunity under the Tort Immunity Act for Jennifer's allegations based

on a negligence theory (745 ILCS 10/2-202 (West 2006)). Count V of the amended

complaint alleged the special-duty exception to the Tort Immunity Act. The circuit court

properly dismissed count V because the supreme court has determined that the special-duty

exception to the Tort Immunity Act violates the Illinois Constitution's provisions governing

sovereign immunity (Ill. Const. 1970, art. XIII, §4) as well as the separation of powers (Ill.

Const. 1970, art. II, §1). Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 50, 697 N.E.2d

699, 710 (1998). 

CONCLUSION

For the foregoing reasons, we reverse the order of the circuit court of Williamson

County granting Herrin's motion to dismiss counts III and IV of the amended complaint and

remand for further proceedings on those counts. We affirm the circuit court's order granting

the motion to dismiss counts I, II, and V of the amended complaint.

Affirmed in part and reversed in part; cause remanded.

CHAPMAN and WEXSTTEN, JJ., concur.
NO. 5-06-0501

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

___________________________________________________________________________________

JENNIFER KEENER, Individually and as ) Appeal from the

Administrator of the Estate of ) Circuit Court of

Chelsea Keener, Deceased, ) Williamson County.

)

Plaintiff-Appellant, )

)

v. ) No. 04-L-146

)

THE CITY OF HERRIN, ) Honorable

) Ronald R. Eckiss,

Defendant-Appellee. ) Judge, presiding.

___________________________________________________________________________________

Opinion Filed: October 6, 2008

___________________________________________________________________________________

Justices: Honorable Bruce D. Stewart, P.J.

Honorable Melissa A. Chapman, J.,

Honorable James M. Wexstten, J., 

Concur

___________________________________________________________________________________

Attorney Mark D. Prince, Prince Law Firm, 204 West College, P.O. Box 1030, 

for Carbondale, IL 62903

Appellant

___________________________________________________________________________________

Attorney Joseph A. Bleyer, Bleyer and Bleyer, 601 West Jackson Street, P.O. Box 487, 

for Marion, IL 62959-0487

Appellee

___________________________________________________________________________________