Collins v. Chicago Transit Authority

                                             SECOND DIVISION
                                             FEBRUARY 18, 1997









No. 1-96-2442

MARY ANNE COLLINS,                      )    Appeal from the
                                        )    Circuit Court of
     Plaintiff-Appellant,               )    Cook County
                                        )
                                        )
     v.                                 )    96 L 01217          
                                        )
                                        )    
CHICAGO TRANSIT AUTHORITY,              ) 
                                        )                        
     Defendant-Appellee.                )    The Honorable
                                        )    Robert J. Quinn,
                                        )    Judge Presiding

     PRESIDING JUSTICE DiVITO delivered the opinion of the court:
     After a fellow passenger, Mauro Sisto, assaulted her on a
Chicago Transit Authority train, plaintiff Mary Anne Collins filed
a complaint against Sisto and the Chicago Transit Authority (CTA). 
Pursuant to the CTA's motion, the court dismissed it from the
action based on its immunity under section 27 of the Metropolitan
Transit Authority Act  (70 ILCS 3605/27 (West 1992)) (Metropolitan
Transit Act).  Plaintiff appeals the dismissal on the basis that,
notwithstanding any immunity it may have under the Metropolitan
Transit Act, the CTA was liable for her injuries because it owed
her a special duty. 
     The parties raise the following issues on appeal: (1) whether
the allegations of plaintiff's complaint were sufficient to
establish that the CTA owed her a special duty; (2) whether the
special duty exception to governmental immunity applies to immunity
under section 27 of the Metropolitan Transit Act; (3) whether
applying a special duty exception to immunity under the Metropoli-
tan Transit Act violates the Illinois Constitution of 1970.
     In her complaint, plaintiff alleged the following.  She used
the CTA O'Hare/Douglas elevated train (Blue Line) to commute
regularly from her home in Park Ridge to her job in downtown
Chicago.  She rode a CTA train rather than a Metra train because it
was cheaper to do this, and the Metra train schedule was not conve-
nient.   
     Over a period of weeks in the summer of 1995, Sisto stalked
and assaulted plaintiff on Blue Line trains.  Initially, he merely
followed her or stood near her.  She tried to avoid him, but he
continued to pursue her, and his actions increased in frequency and
intensity.  For example, he approached her and pressed his pelvis
against her.
     Plaintiff further alleged that she placed telephone calls to
the CTA, in which she complained about Sisto's behavior and asked
for protection from him.  The CTA, however, did nothing.
     On July 19, 1995, plaintiff called the CTA again to request
protection for herself and for other female passengers whom Sisto
was pursuing.  After this call, the CTA expressly promised to
provide a security guard to walk through the trains in order to
deter Sisto and to protect female passengers.  In reliance on this
promise, plaintiff continued to ride the Blue Line trains.
     On the morning of July 20, 1995, plaintiff saw Sisto on the
platform at a Blue Line stop.  She ran from him.  He chased her in
and out of a train, but she escaped when the doors to the train
closed while he was on the train and she was on the platform. 
According to plaintiff, there were no CTA security guards on the
train.
     Plaintiff's husband telephoned the president of the CTA later
that day.  He spoke to the president's assistant and informed the
assistant of the incident involving plaintiff and Sisto.  He asked
the CTA to honor the promise it had made to his wife.  The
assistant informed plaintiff's husband that the president was in a
meeting but that someone would return his call shortly.
     That evening, when plaintiff was riding home on a Blue Line
train, Sisto cornered her and placed his pelvis against her.  At
the next stop, plaintiff informed the conductor of the assault, and
the conductor relayed the information to a dispatcher.  Although
there was a police station across the street from the California
stop, which was a mile away, the conductor informed plaintiff that
the police would be waiting at a stop that was several miles away. 
At no time did a security guard appear to assist plaintiff.
     When Sisto saw plaintiff talking to the conductor, he exited
the train at the California stop.  Plaintiff informed the conductor
of this, but he refused to apprehend Sisto or to otherwise help
her.  CTA personnel summoned the police only when plaintiff
informed a ticket agent at the California stop that Sisto had
assaulted her.  Police arrested Sisto, and he pleaded guilty to
assaulting plaintiff.  Later that night, the head of security for
the CTA admitted to plaintiff and her husband that the CTA had
"screwed up."
     As a result of the assault, plaintiff suffered extreme
emotional distress and anxiety.  In addition, she was unable to
ride the CTA and believed her job was in jeopardy.  The stress
produced by the assault negatively affected her job performance,
and the longer commute necessitated by her inability to ride the
CTA caused her to be late for work.
     Count I of her complaint contained a negligence claim against
the CTA.  Plaintiff alleged that she notified the CTA of Sisto's
assaults on at least two occasions and, after it became aware of
this particular danger, it undertook specific acts by promising to
provide security on the Blue Line.  Despite this promise, plaintiff
was injured while under the direct and immediate control of the
CTA.  She alleged that its duty of care to her arose as a result of
this promise and as a result of its status as a common carrier.
     According to plaintiff, the CTA breached its duty of care by
failing to provide security guards, by failing to institute
appropriate security measures to protect her and other female
passengers, by failing to properly train personnel regarding
procedures following an attack on a passenger, by failing to
implement proper procedures to notify police and security personnel
when passengers are in danger, and by failing to stop Sisto's
assaults.
     Count II of plaintiff's complaint was a claim against the CTA
for intentional infliction of emotional distress.  In this count,
plaintiff alleged that the CTA "willfully and maliciously refused"
to provide her with assistance when she informed it about Sisto's
assaults and about his escape from the train on January 20, 1995. 
According to plaintiff, its refusal to act was intentional and
reckless.
     Count III of the complaint was a claim against Sisto for
battery.  Count IV was a claim against him for intentional
infliction of emotional distress.
     The CTA filed a motion to dismiss pursuant to section 2-619.1
of the Code of Civil Procedure (735 ILCS 5/2-619.1 (West 1992)). 
First, it argued that the circuit court should dismiss counts I and
II of plaintiff's complaint under section 2-619(a)(9) of the Code
of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 1992)) because
section 27 of the Metropolitan Transit Act provided it with
immunity from liability for plaintiff's claim.  This statute
provides:
     "Neither the Authority, the members of its Board nor its
     officers or employees shall be held liable for failure to
     provide a security or police force or, if a security or
     police force is provided, for failure to provide adequate
     police protection or security, failure to prevent the
     commission of crimes by fellow passengers or other third
     persons or for the failure to apprehend criminals."  70
     ILCS 3605/27 (West 1992).
     According to the CTA, this immunity applied to plaintiff's
claim, the allegations of her complaint were insufficient to show
that it owed her a special duty, and it would be unconstitutional
to apply a judicially created special duty exception to a statutory
immunity.  The CTA also argued that plaintiff's allegations were
insufficient to show intentional infliction of emotional distress.
     After a hearing, the circuit court dismissed plaintiff's
claims against the CTA with prejudice.  It stated: 
     "[The CTA's section] 2-619 motion is granted as to Counts
     I & II, on the ground that [section] 27 of the Metropoli-
     tan Transit Act, 70 ILCS 3605, provides absolute immunity
     for injuries incurred for the failure to provide a police
     force or the failure to prevent the commission of crimes
     by fellow passengers or third persons."  
The court also found that there was no just cause for delaying the
appeal of the order.  When the parties asked the court for clarifi-
cation of its ruling, the court stated that it had not based its
dismissal of the complaint on a finding that a special duty
exception to the Metropolitan Transit Act is unconstitutional.
     Plaintiff does not dispute that, absent an exception, section
27 of the Metropolitan Transit Act would provide the CTA with
immunity from liability for the injuries plaintiff alleges in her
complaint.  Instead, she argues that the CTA is liable under a
special duty exception to immunity under this statute.  According
to plaintiff, the special duty exception applies because she
alleged facts demonstrating that the CTA "voluntarily assumed a
special duty to her, separate from the general duty it owed its
other passengers."  The CTA responds that the allegations of
plaintiff's complaint were insufficient to show that the CTA owed
her a special duty.
     Plaintiff replies, however, that we should reject the CTA's
argument that her special duty allegations were insufficient. 
According to plaintiff, this argument is based on the CTA's section
2-615 motion, and the circuit court did not rule on this motion. 
In addition, she asserts that she alleged sufficient facts to show
that the CTA owed her a special duty.
     Contrary to plaintiff's argument, we may affirm the dismissal
based on the insufficiency of her special duty allegations. 
Plaintiff is correct that the circuit court's dismissal was
premised on the CTA's section 2-619 motion.  However, we may affirm
a dismissal on any basis in the record regardless of whether the
circuit court relied on that basis or whether its reasoning was
correct.  See Nikolic v. Seidenberg, 242 Ill. App. 3d 96, 99, 610 N.E.2d 177 (1993).
     To avoid dismissal of her complaint, a plaintiff may not
merely allege a duty, she must allege facts from which the law will
impose a duty, facts showing a breach of that duty, and a resulting
injury.  Marvin v. Chicago Transit Authority, 113 Ill. App. 3d 172,
176, 446 N.E.2d 1183 (1983).  In deciding whether a plaintiff has
stated a cause of action, a court accepts all well-pleaded facts as
true and draws all reasonable inferences therefrom in favor of the
plaintiff, but a court does not accept as true conclusions of law
or fact that are unsupported by allegations of specific fact. 
Majumdar v. Lurie, 274 Ill. App. 3d 267, 268, 653 N.E.2d 915
(1995).
     Illinois courts have held that, under common law, municipali-
ties are generally not liable for failing to supply police or fire
protection and are not liable for injuries police officers or fire
fighters negligently cause while performing their official duties. 
Leone v. City of Chicago, 156 Ill. 2d 33, 37, 619 N.E.2d 119
(1993).  Courts have recognized a "special duty" or "special
relationship" exception to this immunity if a plaintiff shows that
the municipality owes her a duty that is different from the duty it
owes the general public.  Burdinie v. Village of Glendale Heights,
139 Ill. 2d 501, 507-08, 565 N.E.2d 654 (1990).  To show that a
special duty exists, a plaintiff must establish (1) that the
municipality is uniquely aware of the particular danger or risk to
the plaintiff; (2) that the municipality made specific acts or
omissions; (3) that these acts or omissions were affirmative or
willful in nature; and (4) that the plaintiff's injury occurred
while the plaintiff was under the direct and immediate control of
employees or agents of the municipality.  Burdinie, 139 Ill. 2d  at
508.
     In this case, the CTA disputes the sufficiency of plaintiff's
allegations concerning only the first and fourth elements that
establish a special duty.  According to the CTA, plaintiff did not
sufficiently establish its awareness of a particular danger to her
because she alleged that she asked the CTA to provide a security
guard, not only to protect her, but to protect her and other female
passengers.  Plaintiff counters that she did show the CTA's
awareness of a particular danger to her through her allegations
that she informed the CTA that Sisto was stalking her, specifical-
ly.
     As the court stated in Leone v. City of Chicago, 156 Ill. 2d 33, 40, 619 N.E.2d 119 (1993), the "unique awareness" element is
satisfied if the plaintiff alleges that the municipality is "on
notice that a preventable danger threatens a particular individual
of whom it is aware."  Plaintiff's allegations in this case were
sufficient to meet the unique awareness element.  She alleged that
Sisto followed her, approached her, and pressed his pelvis against
her.  She further alleged that she informed the CTA of this
behavior, and her husband informed it that Sisto had chased her on
July 20.  Although she included other female passengers in her
request for protection, her other allegations establish that the
CTA was aware that Sisto posed a threat to her in particular.  
     Although plaintiff sufficiently alleged the CTA's unique
awareness of a particular danger to her, her allegations failed to
establish that the CTA had direct and immediate control over her. 
Illinois courts have repeatedly held that, to establish direct and
immediate control, a plaintiff must allege that the public employee
"'creates a position of peril ultimately injurious to a plaintiff,
as opposed to situations where a plaintiff merely seeks protection
from the public employee that is not normally provided.'"  Leone,
156 Ill. 2d  at 39, quoting Burdinie, 139 Ill. 2d  at 525.  Whether
there is direct and immediate control depends on whether the public
official initiated the circumstances that created the dangerous
situation.  Burdinie, 139 Ill. 2d at 525-26; Thames v. Board of
Education, 269 Ill. App. 3d 210, 216-17, 645 N.E.2d 445 (1994).  If
a plaintiff initiates the contact with the public employee, she is
not under the direct and immediate control of the municipality. 
Burdinie, 139 Ill. 2d  at 526.
     For example, in Leone v. City of Chicago, 156 Ill. 2d 33, 619 N.E.2d 119 (1993), our supreme court held that, despite the
immunity provided by the Tort Immunity Act, the city was liable
under the special duty exception for injuries caused by the negli-
gence of one of its police officers.  The police officer had
stopped the plaintiff because her license plate was expired.  When
the plaintiff expressed disbelief concerning the reason for the
stop, the officer told her to look at her license plate if she did
not believe him.  The plaintiff exited her car and, as she was
looking at the license plate on the rear of her car, a passing
motorist struck the rear of the police car, which was parked behind
the plaintiff's car.  As a result, the plaintiff was pinned between
her car and the police car.  Leone, 156 Ill. 2d  at 35-36.
     The city argued that it was immune from liability under the
Tort Immunity Act, which protected it from liability for the
failure to provide police protection and for injuries resulting
from the acts or omissions of a public employee in enforcing the
law, unless the acts are the result of willful and wanton conduct. 
See 745 ILCS 10/4-102, 2-109, 2-202 (West 1992).  The court
concluded, however, that the city was liable under a special duty
exception to this immunity.  Leone, 156 Ill. 2d  at 40-41.  The
court found that the officer had exercised direct and immediate
control over the plaintiff.  He had initiated and created the
dangerous situation that led to the plaintiff's injuries by
ordering her to stop in an active traffic lane, by parking close to
her, and by directing her to the area between their cars.  Leone,
156 Ill. 2d  at 39-40.
     Similarly, in Anthony v. City of Chicago, 168 Ill. App. 3d
733, 523 N.E.2d 22 (1988), the court found that the special duty
exception applied because fire fighters had exerted direct and
immediate control over the plaintiff.  The plaintiff, a civilian,
alleged that he was injured when fire fighters directed him to help
them in fighting a fire and directed him to open an elevator door. 
The court held that the fire fighters owed him a special duty
because they initiated the events that were immediately accountable
for the plaintiff's injuries.  Anthony, 168 Ill. App. 3d at 738;
see also Gardner v. Village of Chicago Ridge, 71 Ill. App. 2d 373,
378-79, 219 N.E.2d 147 (1966) (officers exercised direct and
immediate control when the plaintiff complied with their request to
identify suspects, and those suspects beat the plaintiff).
     By contrast, courts have found no direct and immediate control
where the plaintiff asks a public employee to act, and the employee
acts or fails to act in such a way that the plaintiff is injured. 
For example, in Doe v. Calumet City, 161 Ill. 2d 374, 641 N.E.2d 498 (1994), the plaintiffs, Jane Doe and her two children, Betty
and John, were in their apartment when a man entered and began
sexually assaulting Jane and threatening to kill her and her
children.  When he complied with her request to move her children
to a different room, she ran from the apartment.  He chased her but
then returned to the apartment, where the children had remained. 
The police arrived but refused to enter the apartment to rescue the
children.  One police officer refused on the basis that he did not
want to be liable for the property damage associated with breaking
down the door to the apartment.  The officers physically restrained
Jane from reentering the apartment to rescue her children.  After
a half an hour, police finally entered the apartment, where they
found the intruder raping Betty.  He had also choked and threatened
John.  Doe, 161 Ill. 2d  at 381-83.
     The court held that the special duty exception did not apply
under these circumstances because the police had exercised no
direct and immediate control over the children.  The police had not
initiated the circumstances that placed Betty and John in danger
because they did not bring the intruder to the apartment or order
the children to remain there with the intruder.  Doe, 161 Ill. 2d 
at 387.
     Similarly, in Marvin v. Chicago Transit Authority, 113 Ill.
App. 3d 172, 446 N.E.2d 1183 (1983), the court held that the city
did not owe the plaintiff a special duty because its police officer
had not exercised direct and immediate control over the plaintiff. 
Several youths had threatened the plaintiff as he paid his fare at
a CTA station patrolled by a Chicago police officer. The officer,
who had witnessed the threats, refused the plaintiff's request to
accompany him onto the train platform, and the youths subsequently
beat the plaintiff on the platform.  Marvin, 113 Ill. App. 3d at
174-77; see also Burdinie, 139 Ill. 2d  at 526-27 (swimming
instructor did not exercise direct and immediate control when he
directed the plaintiff to jump into the pool; the plaintiff volun-
tarily joined the class and initiated the contact with the munici-
pality by enrolling in the class).
     The allegations of plaintiff's complaint in this case do not
show that the CTA exercised direct and immediate control over her
at the time she was injured.  Her allegations do not show such
control because they describe a situation in which she asked a
public employee for protection that was not normally provided. 
There is no allegation that a public employee created a position of
peril for her.  See Leone, 156 Ill. 2d  at 39, citing Burdinie, 139 Ill. 2d  at 525.  As in Doe, the CTA did not create the circumstanc-
es that led to her assault.  It did not place Sisto on the train or
direct plaintiff to ride the train.  Rather, as in Burdinie,
plaintiff initiated the contact with the CTA by choosing to ride
the Blue Line and by requesting additional security.  Like the
municipalities in Doe and Marvin, the CTA did not have direct and
immediate control over plaintiff when it failed to provide the
protection plaintiff requested.  See also White v. Village of
Homewood, No. 1-95-0961, slip op. at 15 (November 26, 1996)
(finding no direct and immediate control where no governmental
official in a position of authority ordered the plaintiff to take
specific actions and where defendants did not have information
about the situation that the plaintiff did not share).  Given the
absence of allegations establishing that the CTA exercised direct
and immediate control over plaintiff, the complaint fails to show
the existence of a special duty, and we affirm its dismissal.
     Because of our conclusion that plaintiff failed to sufficient-
ly allege a special duty, it is unnecessary for us to address
whether there is a special duty exception to the Metropolitan
Transit Act and whether such an exception is constitutional.  See
Eagan v. Chicago Transit Authority, 158 Ill. 2d 527, 634 N.E.2d 1093 (1994) (refusing to address the constitutionality of a special
duty exception to the Metropolitan Transit Act after holding that
there was no special duty in the circumstances before it).
     Judgment affirmed.
     McNULTY and TULLY, JJ., concur.