Third Division
Filed: December 29, 2004

No. 1-03-2651

This is a permissive interlocutory appeal brought pursuant to Supreme Court Rule 308 (155 Ill. 2dR. 308). The certified question before us is whether section 4-102 or 4-107 of the Local Governmental andGovernmental Employees Tort Immunity Act (745 ILCS 10/4-102, 4-107 (West 2002)) provides absoluteimmunity to a municipality and its police officers who are alleged to have willfully and wantonly failed toprevent a crime against a victim of domestic violence. For the reasons which follow, we answer the questionin the negative and remand the matter to the circuit court.

The facts giving rise to this litigation are substantially undisputed. On May 3, 2002, Ronyale Whitecalled "911" requesting police assistance because her husband, Louis Drexel, was in her house. Whiteinformed the operator that Drexel was in violation of an order of protection issued by the circuit court and thathe owned a gun. An emergency telephone dispatcher relayed this information to Chicago police officersChristopher Green and Donald E. Cornelius, and one of the officers acknowledged receipt of the information. Neighborhood witnesses reported that two police officers drove in a marked car to White's house, but left thescene without investigating or assisting in the matter approximately five minutes before Drexel shot White. White died as a result of the gunshot wounds on the following day.

The plaintiff, Melissa Moore, as independent administrator of White's estate, subsequently filed acomplaint against Green, Cornelius, and the City of Chicago (hereinafter referred to as the "City"), assertingwrongful death and survival actions. She alleged in her fourth-amended complaint⁽¹⁾ that, at the relevant timeperiod, White was a member of the class of persons designed to be protected under the Illinois DomesticViolence Act of 1986 (hereinafter referred to as the "Domestic Violence Act") (750 ILCS 60/101 et seq. (West2002)), and that the officers had a duty under the statute to use all reasonable means to prevent further abuse,harassment, or exploitation of White by, inter alia, providing or arranging transportation for her to a place ofshelter or arresting Drexel. Moore charged that the officers breached the duty of care owed to White throughone or more of the following willful and wanton acts or omissions: traveling to White's house and leaving thescene prior to investigating or offering any assistance with respect to a violation of an order of protection;knowingly rejecting White's plea for assistance; acknowledging receipt of the information relayed by theemergency dispatcher and preventing other officers from assisting White by failing to appear at the scene;failing to "intervene in the situation" at White's home, knowing she was in need of protection; and failing totransport White to a safe location.

The City filed a motion to dismiss the plaintiff's complaint pursuant to section 2-619 of the Code ofCivil Procedure (735 ILCS 5/2-619 (West 2002)), arguing that, pursuant to sections 4-102 and 4-107 of theLocal Governmental and Governmental Employees Tort Immunity Act (hereinafter referred to as the "TortImmunity Act") (745 ILCS 10/1-101 et seq. (West 2002)), it was absolutely immune from any liabilitypredicated on an alleged failure to prevent a crime or to make an arrest. Thereafter, Green and Cornelius joinedin the City's motion. The plaintiff argued in her response that section 305 of the Domestic Violence Act (750ILCS 60/305 (West 2002)), which provides an exception to law enforcement immunity for conduct which iswillful and wanton, controlled her causes of action rather than section 4-102 or 4-107 of the Tort ImmunityAct, as asserted by the defendants.

The circuit court denied the defendants' motion to dismiss, agreeing with the plaintiff's position thatsection 305 of the Domestic Violence Act was the applicable immunity provision. The City filed a motion forreconsideration of the court's ruling, and Green and Cornelius also joined in that motion. The circuit courtdenied the motion to reconsider. It did, however, find that resolution of the defendants' motion involved aquestion of law as to which there is substantial ground for difference of opinion and that an immediate appealfrom its order may materially advance the ultimate termination of the litigation. The circuit court set forth inits written order the following question of law involved:

"Does Section 4-102 or 4-107 of the Local Governmental and Governmental Employees TortImmunity Act provide absolute immunity to a municipality and its police officers who arealleged to have willfully and wantonly failed to prevent a crime against a protected person bytheir actions or inactions (as specified in