Chiczewski v. Emergency Telephone System Board
Annotate this Case
No. 2--96--1279
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
KATHERINE CHICZEWSKI, a Minor, ) Appeal from the Circuit
By and Through her Next Friend, ) Court Du Page County.
Linda Chiczewski; LINDA )
CHICZEWSKI, Indiv.; and JOSEPH )
CHICZEWSKI, Indiv., )
) No. 93--L--1319
Plaintiffs-Appellants, )
)
v. )
)
EMERGENCY TELEPHONE SYSTEM )
BOARD OF Du PAGE COUNTY, ) Honorable
) Hollis L. Webster,
Defendant-Appellee. ) Judge, Presiding.
_________________________________________________________________
JUSTICE HUTCHINSON delivered the opinion of the court:
Plaintiffs, Katherine, Linda, and Joseph Chiczewski, appeal
from the trial court's order granting summary judgment in favor of
defendant, the Emergency Telephone System Board of Du Page County.
Plaintiffs argue that the trial court erred in finding defendant to
be a public agency and erred in finding insufficient evidence of
willful and wanton misconduct by defendant. We affirm.
Defendant entered into a contract with Illinois Bell in 1989
to provide enhanced 911 service in Du Page County pursuant to the
Emergency Telephone System Act (the Act) (50 ILCS 750/0.01 et seq.
(West 1994)). Defendant began collecting a surcharge of $0.50 per
month per access line to support this service. On September 5,
1991, the Illinois Commerce Commission (ICC) gave defendant the
authority to operate the enhanced 911 service. Defendant was
instructed by the ICC to enter into "Joint Powers Agreements" with
various public entities that were part of other 911 systems but
whose boundaries were contiguous.
The City of Naperville (Naperville) is an adjacent "public
agency" with whom defendant was instructed to enter into an
agreement, but the city opted out of the agreement pursuant to
section 15.3 of the Act (50 ILCS 750/15.3 (West 1994)). The
residents of Naperville were protected under a separate emergency
telephone system. However, this system did not cover
unincorporated areas outside of Naperville. Defendant was ordered
by the ICC on September 25, 1991, to cover these areas with its
enhanced 911 system.
Plaintiffs reside in an unincorporated area outside of
Naperville that should have been covered by defendant's enhanced
911 system. On July 13, 1992, an intruder entered plaintiffs' home
and severely injured plaintiff Katherine, the minor child of Linda
and Joseph. Plaintiff Linda discovered her injured daughter and
placed a 911 emergency call at approximately 4 a.m. The call was
routed to Naperville's system instead of defendant's system. The
911 operator in Naperville informed plaintiff Linda that she could
not dispatch emergency services to areas outside of Naperville, but
she immediately transferred the call to the Du Page County
sheriff's office. The police were at plaintiffs' home within 11
minutes of the emergency call, and paramedics arrived a few minutes
later. Plaintiffs did not wait for emergency services but instead
drove plaintiff Katherine to a hospital before help arrived.
Plaintiffs filed suit against various parties, including
defendant. On May 3, 1994, plaintiffs filed their second amended
complaint, the complaint relevant to this appeal, alleging that
defendant's actions amounted to willful and wanton misconduct.
Plaintiffs alleged that defendant was a "public agency" in this
complaint but have since contended that defendant is not a public
agency. Defendant filed its motion for summary judgment. On
September 26, 1996, the trial court granted defendant's motion.
The trial court found that defendant was a public agency and that
plaintiffs had failed to produce any evidence to support their
claim and granted defendant's motion for summary judgment.
Plaintiffs timely appealed.
Plaintiffs raise two issues on appeal: whether the Act
applies to defendant for purposes of this lawsuit; and whether the
alleged actions of defendant constitute willful and wanton
misconduct.
Plaintiffs assert that the trial court erred in applying the
1996 amendments of the Act to defendant. The Act now provides:
"No public agency, public safety agency, emergency
telephone system board, or unit of local government assuming
the duties of an emergency telephone system board, nor any
officer, agent or employee of any public agency, public safety
agency, emergency telephone system board, or unit of local
government assuming the duties of an emergency telephone
system board, shall be liable for any civil damages as a
result of any act or omission, except wilful or wanton
misconduct, in connection with developing, adopting, operating
or implementing any plan or system required by this Act." 50
ILCS 750/15.1 (West Supp. 1995).
This amendment alters the previous statute by specifically
mentioning emergency telephone boards and units of local government
acting as such boards. Plaintiffs assert that this is a
substantial change to the statute and should not be applied
retroactively. Defendant argues that the change in the statute is
merely the clarification of existing law and should be applied
retroactively.
A material change to a statute is presumed to be an alteration
of the original statute. People v. Woodard, 175 Ill. 2d 435, 449
(1997). If, however, the circumstances surrounding the enactment
of the amendment indicate the intention to interpret the statute,
then this presumption is rebutted. Friedman v. Krupp Corp., 282
Ill. App. 3d 436, 444 (1996). "An amendment of an unambiguous
statute indicates a purpose to change the law, while no such
purpose is indicated by the mere fact of an amendment of an
ambiguous provision." O'Connor v. A&P Enterprises, 81 Ill. 2d 260,
271 (1980). "It is proper for a court to consider a subsequent
amendment to a statute to determine the legislative intent behind
and the meaning of the statute prior to the amendment." Bloink v.
Olson, 265 Ill. App. 3d 711, 715-16 (1994).
In the present case, the trial court concluded that the
amendment to the Act was merely a clarification of the immunity and
not a substantive change. The purpose of section 15.1 of the Act
is to provide limited tort immunity for the agencies responsible
for creating and running the emergency telephone system in
Illinois. See 50 ILCS 750/15.1 (West Supp. 1995). It is counter-
intuitive to assume that the legislature originally intended to
exclude the very boards that created the system from this immunity.
We agree with the trial court that the amendment to the Act is
merely a clarification of the Act and does not represent a
substantive change. Therefore, defendant will only be held liable
for tortious conduct that rises to the level of willful and wanton
misconduct.
Plaintiffs next assert that the trial court erred in granting
the motion for summary judgment pursuant to section 2--1005(c) of
the Code of Civil Procedure (735 ILCS 5/2--1005(c) (West 1996))
because the jury, not the trial court, should determine whether
defendant was guilty of willful and wanton misconduct. Summary
judgment is proper when the pleadings, depositions, and affidavits
demonstrate that no genuine issue of material fact exists and that
the moving party is entitled to judgment as a matter of law. 735
ILCS 5/2--1005(c) (West 1996). In adjudicating a summary judgment
motion, a court must construe the evidence strictly against the
movant and liberally in favor of the nonmoving party. Guerino v.
Depot Place Partnership, 273 Ill. App. 3d 27, 30 (1995). Summary
judgment is a drastic means of resolving litigation and should be
allowed only when the moving party's right to judgment is clear and
free from doubt. Guerino, 273 Ill. App. 3d at 30. We conduct a de
novo review of an order granting summary judgment. Espinoza v.
Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995).
Our legislature defined willful and wanton conduct in the
Local Governmental and Governmental Employees Tort Immunity Act
(745 ILCS 10/1--210 (West 1994)), as follows:
" 'Willful and wanton conduct' as used in this Act means a
course of action which shows an actual or deliberate intention
to cause harm or which, if not intentional, shows an utter
indifference to or conscious disregard for the safety of
others or their property." 745 ILCS 10/1--210 (West 1994).
Plaintiffs are correct that the determination of willful and wanton
misconduct should go to the jury (Calloway v. Kinkelaar, 168 Ill. 2d 312 (1995)), but are incorrect in assuming that a motion for
summary judgment will fail because they have merely alleged willful
and wanton misconduct. If plaintiffs have failed to produce any
evidence of such conduct, then the motion for summary judgment must
be granted.
Plaintiffs have failed to produce any evidence that defendants
actions amounted to willful and wanton misconduct.
"To plead wilful and wanton conduct sufficiently, a
plaintiff must allege either:
'[A] course of action which shows actual or
deliberate intent to harm or which, if the course of
action is not intentional, shows an utter indifference to
or conscious disregard for a person's own safety or the
safety or property of others.' " Brock v. Anderson Road
Ass'n, 287 Ill. App. 3d 16, 25 (1997).
The complaint alleges that defendant did not enter into an
agreement with the City of Naperville and was aware that
plaintiffs' home was not sufficiently covered by their 911 service.
However, the complaint fails to allege that defendant was
responsible for the failed formation of the bilateral contract.
Discovery established that Naperville actually opted out of the
system. Defendant cannot now be held responsible for failing to
enter into an agreement with a party that refused to agree.
Additionally, plaintiffs failed to plead any facts or present any
evidence that defendant should have been aware that calls from
plaintiffs' subdivision would be misrouted to Naperville. There
are no records that such a misrouting had ever occurred before this
incident. In fact, an accidental 911 call had previously been made
from plaintiffs' home and had been routed correctly.
Plaintiffs also assert that defendant received a monthly
payment for emergency telephone service for plaintiffs and failed
to provide the service. Even if there were facts sufficient to
support this allegation, it would not, by itself, amount to willful
and wanton misconduct. Plaintiffs have only shown that a
misrouting of an emergency call may have contributed to an 11-
minute response time by emergency personnel. Plaintiffs have not
presented any facts or other evidence that would evince "intent,"
"utter indifference," or "conscious disregard." Plaintiffs
undertook a lengthy discovery process but were unable to find
sufficient facts to support their claim and protect their action
from a motion for summary judgment.
The judgment of the circuit court of Du Page County is
affirmed.
Affirmed.
INGLIS and McLAREN, JJ., concur.
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
KATHERINE CHICZEWSKI, a Minor, ) Appeal from the Circuit
By and Through her Next Friend, ) Court Du Page County.
Linda Chiczewski; LINDA )
CHICZEWSKI, Indiv.; and JOSEPH )
CHICZEWSKI, Indiv., )
) No. 93--L--1319
Plaintiffs-Appellants, )
)
v. )
)
EMERGENCY TELEPHONE SYSTEM )
BOARD OF Du PAGE COUNTY, ) Honorable
) Hollis L. Webster,
Defendant-Appellee. ) Judge, Presiding.
_________________________________________________________________
JUSTICE HUTCHINSON delivered the opinion of the court:
Plaintiffs, Katherine, Linda, and Joseph Chiczewski, appeal
from the trial court's order granting summary judgment in favor of
defendant, the Emergency Telephone System Board of Du Page County.
Plaintiffs argue that the trial court erred in finding defendant to
be a public agency and erred in finding insufficient evidence of
willful and wanton misconduct by defendant. We affirm.
Defendant entered into a contract with Illinois Bell in 1989
to provide enhanced 911 service in Du Page County pursuant to the
Emergency Telephone System Act (the Act) (50 ILCS 750/0.01 et seq.
(West 1994)). Defendant began collecting a surcharge of $0.50 per
month per access line to support this service. On September 5,
1991, the Illinois Commerce Commission (ICC) gave defendant the
authority to operate the enhanced 911 service. Defendant was
instructed by the ICC to enter into "Joint Powers Agreements" with
various public entities that were part of other 911 systems but
whose boundaries were contiguous.
The City of Naperville (Naperville) is an adjacent "public
agency" with whom defendant was instructed to enter into an
agreement, but the city opted out of the agreement pursuant to
section 15.3 of the Act (50 ILCS 750/15.3 (West 1994)). The
residents of Naperville were protected under a separate emergency
telephone system. However, this system did not cover
unincorporated areas outside of Naperville. Defendant was ordered
by the ICC on September 25, 1991, to cover these areas with its
enhanced 911 system.
Plaintiffs reside in an unincorporated area outside of
Naperville that should have been covered by defendant's enhanced
911 system. On July 13, 1992, an intruder entered plaintiffs' home
and severely injured plaintiff Katherine, the minor child of Linda
and Joseph. Plaintiff Linda discovered her injured daughter and
placed a 911 emergency call at approximately 4 a.m. The call was
routed to Naperville's system instead of defendant's system. The
911 operator in Naperville informed plaintiff Linda that she could
not dispatch emergency services to areas outside of Naperville, but
she immediately transferred the call to the Du Page County
sheriff's office. The police were at plaintiffs' home within 11
minutes of the emergency call, and paramedics arrived a few minutes
later. Plaintiffs did not wait for emergency services but instead
drove plaintiff Katherine to a hospital before help arrived.
Plaintiffs filed suit against various parties, including
defendant. On May 3, 1994, plaintiffs filed their second amended
complaint, the complaint relevant to this appeal, alleging that
defendant's actions amounted to willful and wanton misconduct.
Plaintiffs alleged that defendant was a "public agency" in this
complaint but have since contended that defendant is not a public
agency. Defendant filed its motion for summary judgment. On
September 26, 1996, the trial court granted defendant's motion.
The trial court found that defendant was a public agency and that
plaintiffs had failed to produce any evidence to support their
claim and granted defendant's motion for summary judgment.
Plaintiffs timely appealed.
Plaintiffs raise two issues on appeal: whether the Act
applies to defendant for purposes of this lawsuit; and whether the
alleged actions of defendant constitute willful and wanton
misconduct.
Plaintiffs assert that the trial court erred in applying the
1996 amendments of the Act to defendant. The Act now provides:
"No public agency, public safety agency, emergency
telephone system board, or unit of local government assuming
the duties of an emergency telephone system board, nor any
officer, agent or employee of any public agency, public safety
agency, emergency telephone system board, or unit of local
government assuming the duties of an emergency telephone
system board, shall be liable for any civil damages as a
result of any act or omission, except wilful or wanton
misconduct, in connection with developing, adopting, operating
or implementing any plan or system required by this Act." 50
ILCS 750/15.1 (West Supp. 1995).
This amendment alters the previous statute by specifically
mentioning emergency telephone boards and units of local government
acting as such boards. Plaintiffs assert that this is a
substantial change to the statute and should not be applied
retroactively. Defendant argues that the change in the statute is
merely the clarification of existing law and should be applied
retroactively.
A material change to a statute is presumed to be an alteration
of the original statute. People v. Woodard, 175 Ill. 2d 435, 449
(1997). If, however, the circumstances surrounding the enactment
of the amendment indicate the intention to interpret the statute,
then this presumption is rebutted. Friedman v. Krupp Corp., 282
Ill. App. 3d 436, 444 (1996). "An amendment of an unambiguous
statute indicates a purpose to change the law, while no such
purpose is indicated by the mere fact of an amendment of an
ambiguous provision." O'Connor v. A&P Enterprises, 81 Ill. 2d 260,
271 (1980). "It is proper for a court to consider a subsequent
amendment to a statute to determine the legislative intent behind
and the meaning of the statute prior to the amendment." Bloink v.
Olson, 265 Ill. App. 3d 711, 715-16 (1994).
In the present case, the trial court concluded that the
amendment to the Act was merely a clarification of the immunity and
not a substantive change. The purpose of section 15.1 of the Act
is to provide limited tort immunity for the agencies responsible
for creating and running the emergency telephone system in
Illinois. See 50 ILCS 750/15.1 (West Supp. 1995). It is counter-
intuitive to assume that the legislature originally intended to
exclude the very boards that created the system from this immunity.
We agree with the trial court that the amendment to the Act is
merely a clarification of the Act and does not represent a
substantive change. Therefore, defendant will only be held liable
for tortious conduct that rises to the level of willful and wanton
misconduct.
Plaintiffs next assert that the trial court erred in granting
the motion for summary judgment pursuant to section 2--1005(c) of
the Code of Civil Procedure (735 ILCS 5/2--1005(c) (West 1996))
because the jury, not the trial court, should determine whether
defendant was guilty of willful and wanton misconduct. Summary
judgment is proper when the pleadings, depositions, and affidavits
demonstrate that no genuine issue of material fact exists and that
the moving party is entitled to judgment as a matter of law. 735
ILCS 5/2--1005(c) (West 1996). In adjudicating a summary judgment
motion, a court must construe the evidence strictly against the
movant and liberally in favor of the nonmoving party. Guerino v.
Depot Place Partnership, 273 Ill. App. 3d 27, 30 (1995). Summary
judgment is a drastic means of resolving litigation and should be
allowed only when the moving party's right to judgment is clear and
free from doubt. Guerino, 273 Ill. App. 3d at 30. We conduct a de
novo review of an order granting summary judgment. Espinoza v.
Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995).
Our legislature defined willful and wanton conduct in the
Local Governmental and Governmental Employees Tort Immunity Act
(745 ILCS 10/1--210 (West 1994)), as follows:
" 'Willful and wanton conduct' as used in this Act means a
course of action which shows an actual or deliberate intention
to cause harm or which, if not intentional, shows an utter
indifference to or conscious disregard for the safety of
others or their property." 745 ILCS 10/1--210 (West 1994).
Plaintiffs are correct that the determination of willful and wanton
misconduct should go to the jury (Calloway v. Kinkelaar, 168 Ill. 2d 312 (1995)), but are incorrect in assuming that a motion for
summary judgment will fail because they have merely alleged willful
and wanton misconduct. If plaintiffs have failed to produce any
evidence of such conduct, then the motion for summary judgment must
be granted.
Plaintiffs have failed to produce any evidence that defendants
actions amounted to willful and wanton misconduct.
"To plead wilful and wanton conduct sufficiently, a
plaintiff must allege either:
'[A] course of action which shows actual or
deliberate intent to harm or which, if the course of
action is not intentional, shows an utter indifference to
or conscious disregard for a person's own safety or the
safety or property of others.' " Brock v. Anderson Road
Ass'n, 287 Ill. App. 3d 16, 25 (1997).
The complaint alleges that defendant did not enter into an
agreement with the City of Naperville and was aware that
plaintiffs' home was not sufficiently covered by their 911 service.
However, the complaint fails to allege that defendant was
responsible for the failed formation of the bilateral contract.
Discovery established that Naperville actually opted out of the
system. Defendant cannot now be held responsible for failing to
enter into an agreement with a party that refused to agree.
Additionally, plaintiffs failed to plead any facts or present any
evidence that defendant should have been aware that calls from
plaintiffs' subdivision would be misrouted to Naperville. There
are no records that such a misrouting had ever occurred before this
incident. In fact, an accidental 911 call had previously been made
from plaintiffs' home and had been routed correctly.
Plaintiffs also assert that defendant received a monthly
payment for emergency telephone service for plaintiffs and failed
to provide the service. Even if there were facts sufficient to
support this allegation, it would not, by itself, amount to willful
and wanton misconduct. Plaintiffs have only shown that a
misrouting of an emergency call may have contributed to an 11-
minute response time by emergency personnel. Plaintiffs have not
presented any facts or other evidence that would evince "intent,"
"utter indifference," or "conscious disregard." Plaintiffs
undertook a lengthy discovery process but were unable to find
sufficient facts to support their claim and protect their action
from a motion for summary judgment.
The judgment of the circuit court of Du Page County is
affirmed.
Affirmed.
INGLIS and McLAREN, JJ., concur.
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